Paris Peace Conference
(1919-1920). Commission
on the Responsibility of
the Authors of the War and
on Enforcement of Penalties
Violation of the laws
and customs of war
sxWBt
_jr
Presented to the
LIBRARY of the
UNIVERSITY OF TORONTO
by
J.J. Litawski
CaViiegie Endowiueiit for International Peace
DIVISION OF INTERNATIONAL LAW
Pamphlet No. 82
VIOLATION OF THE LAWS AND
CUSTOMS OF W AR
Reports of Majority and Disseiitiiiu Reports of
AMERICAN AND JAPANESE MEMBERS
of the Commission of Responsibilities
CONFERENCE OF PARIS
1919
PUBLISHED FOR THE ENDOWMENT
- OXFORD : AT THE CEARENDON PRESS
London, Edinburgh, New York, Toronto, Melbourne, Cape Town, Bombay
IIUMl'IIREY MILFORD
1011)
4i/
u
'01^
CONDITIONS OF PEACE
PART VII
PENALTIES
Article 227
The Allied and Associated Powers publicly arraign William II
of Hohenzollern, formerly German Emperor, for a supreme offence
against international morality and the sanctity of treaties.
A special tribunal will be constituted to try the accused, thereby
assuring him the guarantees essential to the right of defence. It
will be composed of five judges, one appointed by each of the
following Powers : namely, the United States of America, Great
Britain, France, Italy, and Japan.
In its decision the tribunal will be guided by the highest motives
of international policy, with a view to vindicating the solemn
obligations of international undertakings and the validity of inter-
national morality. It will be its duty to fix the punishment which
it considers should be imposed.
The Allied and Associated Powers will address a request to the
Government of the Netherlands for the surrender to them of the
ex-Emperor in order that he may be put on trial.
Article 228
The German Government recognizes the right of the Allied and
Associated Powers to bring before military tribunals persons accused
of having committed acts in violation of the laws and customs of
war. Such persons shall, if found guilty, be sentenced to punishments
laid down by law. This provision will apply notwithstanding any
proceedings or prosecution before a tribunal in Germany or in the
territory of her allies.
The German Government shall hand over to the Allied and
Associated Powers, or to such one of them as shall so request, all
persons accused of having committed an act in violation of the laws
and customs of war, who are specified either by name or by the rank,
office, or employment which they held under the German authorities.
vni CONDITIONS OF PEACIO
Article 229
Persons guilty of criminal acts against the nationals of one of the
Allied and Associated Powers will be brought before the military
tril)unals of that Power.
Persons guilty cf criminal acts against the nationals of more than
one of the Allied and Associated Powers will be V)rought before
military tribunals composed of members of the military tribunals
of the Powers concerned.
In every case the accused will be entitled to name his own counsel.
Article 230
The German Government midertakes to furnish all documents
and information of every kind, the production of which may be
considered necessary to ensure the full knowledge of the incriminating
acts, the discovery of offenders, and the just appreciation of responsi-
bilitv.
COMMISSION ON THE RESPONSIBILITY OF THE
AUTHORS OF THE WAR AND ON ENFORCEMENT
OF PENALTIES
THE Preliminary Peace Conference at the plenary Session on
the 25th January, 1919 (Minute No. 2), decided to create, for the
purpose of enquiring into the responsibihties relating to the war,
a Commission composed of fifteen members, two to be named by
each of the Great Powers (United »States of America, British Empire,
France, Italy and Japan) and five elected from among the Powers,
with special interests.
The Commission was charged to enquire into and report upon
the following points : —
1. The responsibility of the authors of the war.
2. The facts as to breaches of the laws and customs of war com-
mitted by the forces of the German Empire and their
Allies, on land, on sea, and in the air during the present
war.
3. The degree of responsibility for these offences attaching to
I^articular members of the enemy forces, including members
of the General Staffs, and other individuals, however highly
placed.
4. The constitution and procedure of a tribunal appropiiate for
the trial of these offences.
5. Any other matters cognate or ancillary to the above which
may arise in the course of the enquiry, and which tiie
Commission finds it useful and relevant to take into con-
sideration.
At a meeting of the Powers with special interests held on the
27th January, 1919, Belgium, Greece, Poland, Roumania and Serbia
were cho.sen as the Powers who should name representatives.
(Minute No. 2. Annex VI.)
After the several States had nominated their respective repre-
sentatives, the Commission was constituted as follows : —
United States of America :
Hon. Robert Lansing.
Major James Brown Scott.
1 509.2 < ]j
- VIOLATION OF THE LAWS AND CUSTOMS OF WAR
British Empire :
The Rt. Hon. Sir (;()rdon Hcwart, K.C., M.]».
or
Sir Ernest l>oIloek, K.B.E.. K.C.. M.V.
The Rt. Hon. W. h\ IMassey.
France :
Mr. Andre Tardieu.
(Alternate : Captain R. Masson.)
Mr. F. Larnaude.
Jfah/ :
Mr. Scialoja.
(Alternates : Mr. Ricci Busatti, Mr. G. Tosti.)
Mr. Raimondo. Later, Mr. Brambilla (3rd February) :
Mr. M. d'Amelio (Kith February).
-Jajmn :
Mr. Adatci.
Mr. Nagaoka. Later, Mr. S. Taehi (15th February).
Belgium :
Mr. Rolin-Jaequehiyns.
Oreece :
Mr. N. ]*olitis.
Poland :
Mr. C. Skirmunt. Later, Mr. N. Lubienski (14th February).
Uoumania : ,
Mr. S. Rosental,
Serbia :
Professor Slobodan Yovanovitch.
(Alternates : Mr. Koumanoudi, Mr. Novacovitch.)
Mr. Lansing was seleeted as Chairman of the Commission, and
as \'ice-Chairmen, Sir Gordon Hewart or Sir Ernest Pollock and
Mr. Scialoja. Mr. A. de Lapradelle (France) was named General
Secretary and the Secretaries of the Commission were : —
Mr. A. Kirk, United States of America ; Lieutenant-Colonel O. M.
Biggar, British Empire ; Mr. G. H. Tosti, Italy ; Mr. Kuriyama,
Japan ; Lieutenant Baion .1. Guillaume, Belgium ; Mr. Spyridion
Marchetti, Greece ; Mr. (!asimir Rybinski, Poland.
Mr. G. H. Carmerlynck, Professeiir agrege of the University of
France, acted as interpreter to the C'ommission.
The Commission decided to appoint three Sub-Commissions.
Sub-Commission T, on Criminal Acts, was instructed to discover
VIOLATION OF THE LAWS AND CUSTOMS OF WAR .'{
an<l collect the evidence necessary to establish the facts relating to
culpable conduct which (a) brought al)out the world war and accom-
panied its inception, and {h) took place in the course of hostilities/
This Sub-Coni mission selected Mr. W. F. Massey as its Chairman.
Sub-Commission II, o»i the Responsibility for the War, was
. instructed to consider whether, on the facts established by the
Sub-Commission on Criminal Acts in relation to the condvut which
brought about the world war and accomj)anied its inception.
prosecutions could be instituted, and, if it decided that prosecu-
tions could be undertaken, to prepare a report indicating the
individual or individuals who were, in its opinion, guilty, and the
(Joint before which prosecutions should i)roceed.
This Sid)-Com mission selected alternatively Sir Gordon Hewart
or Sir Ernest Pollock as Chairman.
Sub-Commission III, on the Responsibility for the Violation of
the Laws and Customs of War, was instructed to consider whether,
on the facts established by the Sub-Commission on Criminal Acts
in relation to conduct which took place in the course of hostilities,
' prosecutions could be instituted, and if it decided that prosecutions
could be undertaken, to prepare a report indicating the individual
or individuals who were, in its opinion, guilty, and the Court before
which prosecutions should proceed.
This Sub-Commission selected Mr. Lansing as its Chairman.
When the reports of the Sub-Commissions had been considered,
a committee composed of Mr. Rolin-Jaequemyns, Sir Ernest Pollock
and Mr. M. dAmelio was appointed to draft the report of the
Commission. This Committee was assisted by Mr. A. de Lapradelle
and Lieutenant-Colonel O. M. Biggar.
The Commission has the honour to submit its report to the
Preliminary Peace Conference. The report was adopted unani-
mously subject to certain reservations by the United States of America
and certain other reservations by Japan. The LTnited States Delega-
tion has set forth its reservations and the reasons therefor in
a memorandum attached hereto (Annex II j and the same course
has been taken by the Japanese Delegation (Annex III).
D 2
PRE.^EN IKI) TO THE Plli<:LIMlNARY PEACE CONFERENCE
BY TJIK
COMMISSrON ON THE RESPONSIBILITY OF THE AUTHORS
OF THE WAR
AND ON
ENFORCEMENT OF PENALTIES
CHAPTER 1
RESPONSIBILITY OF THE AUTHORS OF THE WAR
On the question of the responsibihty of the auth(Jis of the war,
the Commission, after having examined a number of offieial doeu-
ments relating to the origin of the world war, and to the violationH
of neutrality and of frontiers whieh accompanied its inception,
has determined that the responsibility for it lies wholly upon the
Powers which declared war in ])ursuance of a policy of aggression,
the concealment of which gives to the origin of this war the character
of a dark conspiracy against the peace of Europe.
This responsil)ility lests first on Germany and Austria, secondly
on Turkey and Bulgaria. The responsibility is made all the graver
by reason of the violation by Germany and Austria of the neutrality
of Belgium and Luxemburg, which they themselves had guaranteed.
It is increased, with regard to both France and Serbia, by the
violation of their frontiers before the declaration of war.
1. — Premeditation of the War
A. — Germany and Austria
Many months before the crisis of 1914 the German Emperor had
ceased to pose as the champion of peace. Naturally believing in
the overwhelming superiority of his army, he openly showed his
VIOLATION OF THK LAWS AND f'USTOMS OF WAR O
enmity towaids France, (ienenil von Moltke said to the King of
the BelgiaiiH : ' This tim(^ the matter must he settled,' \n vain the
King protested. The Emperor and his Cliief of Staff remained no
less fixed in their attitude.'
On the 28th .June, 1914, occuired tlie assassination at Sarajevo
of the heir-apparent of Austria. ' It is the act of a Httle group of
madmen,' said Francis Joseph.- The act, committed as it was by
a subject of Austria- Hungary on Austro- Hungarian territory, could
in no wise compromise Serbia, which very correctly expressed its
condolences •' and stopped pubHc lejoicings in Belgrade. If the
Government of Vienna thought that there was any Serbian com-
plicity, Serbia was ready ^ to seek out the guilty parties. But this
attitude failed to satisfy Austria and still less (Germany, who, after
their first astonishment had passed, saw in this royal and national
misfortune a pretext to initiate wai'.
At Potsdam a ' decisive consultation ' took place on the 5th 'luly,
1914.'^ Vienna and Berlin decided upon this plan : 'Vienna will
send to Belgrade a very emphatic ultimatum with a very short
limit of time.' "
The Bavarian Minister, von Lerchenfeld, said in a confidential
despatch dated the 18th July, 1914, the facts stated in which have
never been officially denied : ' It is clear that Serbia cannot accept
the demands, which are inconsistent with the dignity of an inde-
pendent State.' ' Count Lerchenfeld reveals in this report that,
at the time it was made, the ultimatum to Serbia had been jointly
decided upon by the Governments of Berlin and Vienna ; that
they were waiting to send it until President l*oincare and M. Viviani
should have left for St. Petersburg ; and that no illusions were
cherished, either at Berlin or Vienna, as to the consequences which
this threatening measure would involve. It was perfectly well
known that war would be the result.
The Bavarian Minister explains, moreover, that the only fear of
the Berlin Government was that Austria-Hungary might hesitate
and draw back at the last minute, and that on the other hand Serl)ia,
on the advice of France and Great Britain, might yield to the
pressure put upon her. Now, ' the Berlin Government considers
that war is necessary.' Therefore, it gave full powers to Count
Berchtold, who instructed the Ballplatz on the 18th .July, 1914, to
I Yellow Hook, M. Cambon to M. Pichon, 22n(l Novtmhcr, VJ\:i.
- Message to his i>eople. ■' Serbian Blue Book, page ."{0.
* Yellow Book, No. 15, iM. Camlion to M. Bierivenu Martin, 21st July. I'.lU,
^ Lichnowsky Memoir. " Dr. Muehlon'.s Mejiioir.
' Pve{>ort of the 18th July, 1914.
•*» VIOLATION OF THE LAWS AND CUSTOMS OK WAR
negotiate with ]5ulgaiia to iiiduco her to enter into an alHancc and
to participate in the war.
In order to mask this understanding, it was arranged that the
Emperor should go for a cruise in the North Sea, and that the
Prussian Minister of War should go for a holiday, so that the Imperial
Government might pretend that events had taken it completely
by surprise.
Austria suddenly sent Serbia an ultimatum that she had carefully
prepared in such a way as to make it impossible to accept. Nobody
could be deceived ; ' the whole world understands that this ulti-
matum means war.' ^ According to M. Sazonof, ' Austiia-Hungary
wanted to devour Serbia.' -
M. Sazonof asked Vienna for an extension of the short time limit
of forty-eight hours given by Austria to Serbia foi* the most serious
decision in its history.-' Vienna refused the demand. On the
24th and 25th July England and France multiplied their efforts to
persuade Serbia to satisfy the Austro-Hungarian demands. Russia
threw in her weight on the side of conciliation.'
Contrary to the expectation of Austria-Hungary and Germany,
Serbia yielded. She agreed to all the requirements of the ultimatum,
subject to the single reservation that, in the judicial enquiry which
she would commence for the purpose of seeking out the guilty
parties, the paitici])ation of Austiian officials would be kept within
the limits assigned by international law. ' If the Austro-Hungarian
Government is not satisfied with this,' Serbia declared she was ready
' to submit to the decision of the Hague Tribunal.* ^
A quarter of an hour before the expiration of the time limit,
at 5.45 on the 25th, M. I'achich, the Serbian Minister of Foreign
Affairs, delivered this reply to Baron Geisl, the Austro-Hungarian
Minister. On M. Pachich* return to his own office he found awaiting
him a letter from Baron (Jeisl saying that he was not satisfied with
the reply. At ii.'M) the latter had left Belgrade, and even before he
had arrived at A'ienna, the Austro-Hungarian Government had
handed his passports to M. Vovanovitch, the Serbian Minister, and
had prepared thii'ty-three mobilisation proclamations, which were
])ublished on the following morning in the ' Budai)esti Kozloni,'
the official gazette of the Hungarian Government. On the 27th
Sir Maurice de Bunsen telegraphed to Sir Fdward (irey : ' This
' Li<linowsky .Memoir. - .Austro-Hungarian lied Book, .\o. 16.
= Hhic liook". .\o. 2().
' Yi-Uow li<M>k. No. ;j(» ; Blue Book, Nos.. 12, 40, o,j, 0.3, U4, 1 18.
•' Yellow Book, Xo. 46.
s
VIOLATION OF THK LAWS AM) COTOMS OF WAR /
country ha« gone wild with joy at the i)rosj)eet of war witli Serbia.' *
At midday on the 2Hth Austria declared war on Serbia. On the 29th
the AuHtrian Army commenced the bombardment of Belgrade, and
made its dispositions to cross the frontier.
The reiterated suggestions of the Entenie Powers with a view to
finding a peaceful solution of the tlispute only produced evasiv*'
replies on the part of Berlin or j)romises of inteivention witii the
Government of Vii^nna without any effectual steps being taken.
On the 24th of July Russia and England asked that the Powers
should be granted a reasonable delay in which to work in concert
for the maintenance of peace. Germany did not join in this request.-
On the 25th .July Sir Edward Grey proposed mediation by foui-
Powers (England, France, Italy and Germany). France ' and Italy '
immediately gave their concurrence. Germany ' refused, alleging
that it was not a question of mediation but of arbitration, as the
(^'onferenco of the four Powers was called to make j)ro[)osals, not t<)
■ decide.
On the 2Gth July Russia proposed to negotiate directly with
Austria. Austria refused.**
On the 27th July England proposed a European (Jonference.
Germany refused.'
On the 29th July Sir Edward Grey asked the VV'ilhelmstrasse to
be ^ood enough to * suggest any method by which the influence of
the four Powers could be lused together to [)revent a war between
Austria and Russia.' " She was asked herself to say what she
desired.^ Her reply was evasive.^"
On the same day, the 29th July, the Czar Nicholas 1 1 despatched
to the Emperor William II a telegram suggesting that the Austro-
Serbian j)roblem should be su})mitted to the Hague 'rril)unal. This
suggestion rt^ceived no reply. This important telegram does not
appear in the German White Book. It was made public l)y the
Petrograd ' Official Gazette ' (Januar}' 1915).
The Bavarian Legation, in a report dated the .'Hst July, declared
its conviction that the efforts of Sir Edward Grey to i)reserve peace
would not hinder the march of events. '*
' Blue Book, No. 41.
- Russian Orange Book, Xo. 4, Yellow liook. No. 4:5. ,
•' Yellow Book, No. 70. * Yellow Book, No. 72, Blue liook, No. 41>.
'■> Blue Book, No. 4:{. '• Ydlow Book, No. .34.
7 Yellow Book, Nos. 68 and 7:{.
« Yellow liook. No. 1)7. Blue Jiook, .\o. 84. « Blue Book. No. III.
'" Yellow Book, 97, 98 and 109.
" Seeond Re|)ort of Count Lerelienfeld. Bavarian I'leniiiotentiaiv iit Bcniiii. |>iili-
lished on the instructions of Kuil Eisner.
8 VIOLATION OF THK LAWS AM) ( I'STO.MS Ol' WAR
As early as the 2 1st .luly (leiman mobilisation had coninu'iued
hy the recall of a certain number of classes of the leserve,' then of
German oflKcers in SwitzerlaiulV- and finally of the Metz ganison
on the 2r)th .July.' On the 2()th July the (lerman fleet was called
back from Norway.*
The Enlentt did not relax its conciliatory efforts, but the German
Government systematically brought all its attempts to nought.
VVhen Austria consented for the first time on the .'Hst July to
<liHCUss the contents of the Serbian Note with the Russian (Govern-
ment and the Au. tro-Hungaiian Ambassador received orders to
■ converse ' with the Russian Minister of Foreign Affairs,'' Germany
made any negotiation impossible by seniling her ultimatum to
Russia. Prince Lichnowsky wrote that ' a hint from Berlin woukl
have betMi enough to decide Count Berchtold to content himself
with a di])lomatic success and to declare that he was satisfied with
the Serbian re])ly, but this hint was not given. On the contrary
they went forward towards wai.' **
On the 1st August the German Emperor addressed a telegram to
the King of England' containing the following sentence: 'The
troops on my frontier are, at this moment, being kept back by
telegraphic and telephonic orders from crossing the French frontier.'
Now, war was not dealared till two days after that date, and as
the German mobilisation orders were issued on that same day, the
1st August, it follows that, as a matter of fact, the German army
had been mobilised and concentrated in pursuance of previous
orders.
The attitude of the Entente nevertheless remained still to the veiy
end so conciliatory that, at the very time at which the German
fleet was bombarding Libau, Nicholas II gave his word of honour
to William II that Russia would not undertake any aggressive
action during the ])ourparlers,** and that when the German troops
commenced their march across the French frontier M. Viviani
telegraphed to all the French Ambassadors ' we must not stop
working for accommodation.'
On the 3rd August von Schoen went to the Quai d'Orsay with
the declaration of war against France. Lacking a real cause of
complaint, Germany alleged, in her declaration of war, that boml)s
' Yellow Book. Xo. IT,. - Yellow I^pok, No. 60.
•' Yellow Book, No. lUO. * Yellow Book, No. 58.
* Blue Book. No. i;{:{, lied Book. Xo. Tyr).
" Lichnowskv Memoir, p. 1.
" White Book. Aniage :{2 ; Yellow Book. Annex II bi% Xo. 2.
« Telegram from Xichola.s II to William II. Yellow Book No. 6, Annex V.
VIOLATION OF THE LAWS AND CUSTOMS OF WAR I)
had been dropped by French aeroplanes in various districts in
Germany. This statement was entirely false. Moreover, it was either
later admitted to be so ' or no particulars were ever furnished by
the German Government.
Moreover, in order to be manifestly above reproach, France was
careful to withdraw her troops 10 kilom. from the German frontier.
Notwithstanding this precaution, numerous officially established
violations of French territory preceded the declaration of war.-
The provocation was so flagrant that Italy, herself a member of
the Triple Alliance, did not hesitate to declare that in view of the
aggressive character of the war the casus foederis ceased to apj)ly.-^
B. — Turkey and Buhjaria
The conflict was, however, destined to become moic widespread,
and Germany and Austria were joined by allies.
Since the Balkan war the Young Turk Government had been
drawing nearer and nearer Germany, whilst Germany on lier i)ait
had constantly been extending her activities at Constantinople.
A few months before war broke out, Turkey handed over the
command of her military and naval forces to the German General
Liman von Sanders and the German Admiral Souchon.
In August, 1014, the former, acting under orders from tfie
General Headquaiters at Berlin, caused the Turkish Army to begin
mobilising.''
Finally, on the 4th August, the understanding between Turkey
and Germany was definitely formulated in an alliance.'' The con-
sequence was that when the ' Goeben ' and the ' Breslau ' took
refuge in the Bosphorus, Turkey closed the Dardanelles against the
Entente squadrons and war followed.
On the 14th October, 1915, Bulgaria declared war on Serbia.
which country had been at war with Austria since the 2Sth .July,
* Statement of the Municipality of Xiireiiibiirg, dated the '.ird April, 1910.
- Patrols of variou.s strengths erossetl the I'Veneh frontier at fifteen points, oni-
on the 30th July at Xures, eight on the 2nd August, and the others on the lird August,
before war was declared. The French troops lost one killed and several wounded.
The enemy left on French territory four killed, one of whom was an oHicer, and
seven prisoners. At Suarce, on the 2nd August, the enemy carried off nine inhabi-
tants, twenty-five horses, and thirteen carriages. Four incursions (a- (Jerrnan
dirigibles took place between the 25th July and the 1st August. Finally. (Jerinan
aeioplanes flew over Luneville on the :jrd August, before the declaration of war.
and drop[)ed si.\ Iwmbs. (Yellow Book, Nos. 1(>6, l.'JO. \'M &c.)
' Yellow Book, No. 124.
* H. Morganthau, 'Secrets of the liosphorus,' I^^ndon. 1918. pp. ;J9, 40.
5 Cerman White liook, 1913, 1917, Nos. 19 and 20.
10 VIOLATION OF THK LAWS AND CU.STO>LS OK WAK
1914, and had bcon attacked on all fronts by a largo Aiistio-Geinian
army since the 0th October, liHS. {Serbia had, however, committed
no act of provocation against Bidgaria.
Serl)ia never formulated any claim against Bulgaria during the
negotiations which took place between the Kntentt Powers and
I^ulgaria })iior to the hitter's entry into the war. On the contraiy.
she was offering herself ready to make certain teiritorial concessions
to Bulgaria in order to second the efforts of the Entente Powers to
induce Bulgaria to join theuL According to Count Lerchenfeld'.s
reports, however, Bulgaria had begun negotiations with the Ontral
Powers as early as the IStli didy, 11>14, with a view to entering the
war on their side. In April, 1915, the Bulgars made an armed
attack against Seibia near N'^alandovo and Struvmitza, where a real
battle was fought on Serbian territory. Being defeated, the Bulgais
retired, ascribitig this act of aggression i^ some comitadjis. An
International Commission (composed of re])iesentativ"es of the
Entente) discovered, however, that there had l)een Bulgarian
legular officers and soldiers among the dead and the piisoners.^
On i\\v ()th September, 11)15, Bulgaria and Austria-Hungaiy con-
cluded a tr-eaty which iccited that they had agi'eed to undertake
conunon military action against Serbia and by which Austiia-
Hungaiy guaiantced to Bulgaria certain accretions of territory at
Ser})ia's expense, and also jigieed, jointly with (Jernniny, to make
to the Bulgarian Government a war loan of 200,(H)(MK)0 fr., to be
increased if the war lasted more than four months.- Even aft( r
this, y\. Malinofl, one of the former l*rime Ministers of Bulgaria,
took i)art in negotiations with the Entente, and, while these negotia-
tions were continuing. Bulgaria, on the 23rd September, mobilised,
ostensibly to defend her neutrality.
No sooner had the army been mobilised and concentrated and
Bulgarian forces massed on the wholes length of the Serl)ian frontiei",
than the Bulgaiian Government openly and categorically repudiated
•M. Malinolf, stating that he was in no way (|ualifie<l to commit
Bulgaria, and that he deserved " to be subjected to the utmi»>t
rigoui- of his country's laws for his conduct on that occasion.'
Some days later, Austro-CJerman troo})s crossed the Danube and
l)egan to invade Serbia.
As soon as the Seil)iaii trooj)s began to retire, the Bulgars. on
th(^ pretext that the foinu'r had violated thcii" front iei", launched
' .MeiiioraiKliirn 1 of the Scrhiaii Dclcgatioii, Cliapter II, |»arii. r.
- Treaty l^c-twccii liul^ariii and .\u.stna-Huiigary, dated tin- 24tli .Viigiisl. liM.l
(furnislicd by tin- Scrl)iaii Di-logatioii).
VIOLATION OF THE LAWS AND (MTSTOMS OF WAR I I
the attack which eventually led to the complete subjugation of
Serbia.
Two documents in the ])os.session of the Serbian (Government
prove that this incident on the frontier was ' arranged ' and repre-
sented as a Serbian provocation. On the 10th ()ctol)CT, 1915, the
Secretary-General to the Foreign Office at Sofia, at the request of
the Bulgarian Minister for Foreign Affairs, sent the following com-
munication to Count Tarnovski, Austro-Hungarian Minister at
Sofia : — ' In order to divest the attack on Serbia of the appearance
of a preconceived plot, we shall, this evening or to-morrow morning,
provoke a frontier incident in some uninhabited region.' ^ Also,
on the 12th October, 1915, (*ount Tarnovski sent the following
telegram to Vienna: — 'The Generalissimo informs me that the
desired incident on the Serbian frontier was arranged yesterday.' -
Bulgaria, in fact, first attacked on the 1 2th October, 1915, two
days before the declaration of war on Serbia, which took place on
the 14th October, 1915. That this was the case does not prevent
Bulgaria from asserting that the Serbs first crossetl her frontier.
The above sequence of events jjroves that Bulgaria had pre-
meditated war against Serbia, and perfidiously brought it about.
By means of German agents Enver Pasha and Talaat Pasha had,
since the spring of 1914, been aware of the Austro-German plan,
i.e., an attack by AuvStria against Serbia, the intervention by
Germany against France, the passage through Belgium, the occupa-
tion of Paris in a fortnight, the closing of the Straits by Turkey,
and the readiness of Bulgaria to take action.
The Sultan acknowledged this plot to one of his intimates. It
was indeed nothing but a plot engineered by heads of four States
against the independence of Serbia and the peace of Europe.^
CONCLUSIONS
1. The war was premeditated by the Central Powers together with their
Allies, Turkey and Bulgaria, and was the result of acts deliber-
ately committed in order to make it unavoidable.
2. Germany, in agreement with Austria-Hungary, deliberately worked
to defeat all the many conciliatory proposals made by the
Entente Powers and their repeated efforts to avoid war.
' Memorandum 1 of tho S(;rl)iaji Delegation, Cliai)t('r II. jKira. c.
- Memorandum of the Serbian Delegation, 1. Chapter II. |>;ira. c.
' Basri, ' LOrient debalkanind,' chapter II (Paris, Htl!»).
12 X'HJLATION Ol' TMK r.AWS AM) (M'STOMS OK WAIt
II. Violation okthk Xkitcalitv or Rki,<jiijm and liivKMBciu}
A. — Ji('l(/linn
(Jt'i"nian\- is huidciU'd l)\- a specially heavy rcspoiisihilil \' in
icspect of the violation of the lUMitrality of Bel<;inm and Lnxein-
l)ui^. Article I of the Tioaty of London of the h)th April, 1m:{0,
after declarin*; that Belgium should form a ' peip(^tually neutial
State." had placed <.his neutrality undci- the piotection of Austria,
{'"ranee, (Jiivit Britain, Russia ami Prussia. On the 9th August,
IS7(,», Piussia had dcclai'ed "her fixed deteijnination to rcs])ect
lielgian neutiality." On the I'l'nd July. IS7(>, Bismarck wrote to
the Belgian .Minister at Paris, " This declaration is i-end(U'ed supei-
fluous l)y existing ti'caties."
It may he of interest to recall that the attribute's of neutralitv
were specifically defined by the fifth Hague Convention, of the
ISth October liM>7. That Convention was declaratory of the law
of nations, and contained thes(^ ))rovisions — ' The territory of neutial
l*owers is inviolal>le " (Aiticle I). " Belligeients are foibidden to
move troops or convoys, whether of munitions of war- or of supplies,
across the territoiy of a neutral Power " (Article 2). " 'J'he fact of
a neutral Power resisting^ even by forct^ attempts against its
neutrality cantiot be regarded as a hostik^ act ' (Article JO).
There can l)e no doubt of the l)in(ling foice of the treaties which
guaranteed the neutrality of Belgium. There is e(|ually no doubt
of Belgium's sincerity or of the sincerity of France in their recognition
and respect of this neutrality.
On the 29th July, 1914, the day following the declaration of war
by Austria- Hungary against Serbia, Belgium put her army on its
ic^inforced peace strength, and so advised the Powers by which her
neutrality was guaianteed and also Holland and Luxemburg.^
On the 31st July the French Minister at Brussels visited the
Belgian Minister of Foreign Affairs to notify him of the state of war
])roclaimed in (JiMinany and he spontaneously made the following
statement : ' 1 seize this opportunity to declare that no incursion
of French troo])s into Belgium will take place, even if considerable
forces are massed upon the frontiers of yom* country. France does
not wish to incur the responsibility, so far as Belgium is concerned,
of taking the first hostik^ act. Instructions in this sense will be
given to the French authorities." -
On the 1st August, the Belgian Army was mobilised.'
1 (Jroy t5oolc I, .No. H. - (irry f^ook 1, No. !». •' (irey Uoolv I. \u. 1(».
VIOLATION OF THE LAWS AND (CUSTOMS OK WAR 1 IJ
On the 31st .July, the British Oovernnient had asked the Freiuli
and German Governments sepaiately if they were eacji of them
ready to respi^et the nt^utrality of Belgiimi, provided that no other
i*ower violated it." In notifying the Belgian Goverinnent on the
name day of the aetion taken by the British (Government, tlie
British Minister added : * In view of existing treaties, 1 am instrueted
to inform the Belgian Minister for Foieign Affairs of the above,
and to say that Sir Edward Grey presumes tliat Belgium will do
her. utmost to maintain her neutrality, and that she desires and
expeets that the other Powers will resjxHt and maintain it." - The
immediate and quite definite rejjly of the Belgian Minister of F'oicign
Affairs was that (Great Biitain and the other nations guaranteeing
J^elgian independenee could rest assm-ed that she would neglect no
effort to maintain her neutrality.'
On the same day, Paris and Berlin weie ofticially asked the
question to which reference was made in the British communication.
At Paris the reply was categorical : ' The French (Jovernment are
resolved to respect the neutrality of Belgium, and it would oidy
be in the event of some other I'ower violating that neutrality that
France might find herself under the necessity, in order to assuic
the defence of her own security, to act otherwise.' "*
On the same day as this reply was made at Paris, the French
Minister at Brussels made the following communication to M. L)avig-
non, the Belgian Minister of Foreign Affairs : — ' 1 am authorised
to declare that, in the event of an international waj . the French
Government, in accordance with the declarations they have always
made, will respect the neutrality of Belgium. In the event of this
neutrality not being respected by another Power, the. French
Government, to secure their own defence, might find it necessary
to modify their attitude.' ^
It was decided that this communication should forthwith Ix'
made to the Belgian press.
Meanwhile the attitude of the (German (Government remained
enigmatic. At Brussels the German Ministci-, Herr von Below,
made efforts in his discussions to maintain confidence " ; but at
Berlin, in reply to the question which had been officially asked
by the British Government, the Secretary of State informed the
Britiflh Ambassador that ' he must cojisult the lMn])eror and the
Chancellor before he coukl possibly answer.' '^
' (Jrcy Book 1, No. 10. - (irey Book 1, .\o. 11. ■' (jrey liook 1. No. II.
* Blue Book, No. 125. ' Gn-\ Book 1. No. l.j. « (Jrcv Jiook 1, No. 11».
' Blue Book, No. 122.
14 VfOl.ATION OF THK LAWS AM> ( TSTOMS OF WAR
On the 2nd August, in the course^ of the day, Horr von Bch)W
insisted to the lielgian iMinistiT. M. Davignon, npon the feelings
of seeniity whieli Helginm had the right to entertain towards her
easteiri neighl)ou),' and on tlie same day, at 7 o'clock in the <rvening,
he sent hiirt a ' very confidential * note, which was iK)thing more
than an ultimatinn claiming free passage for (Jerman troops throngh
Belgian territory. -
Jt was impossible to be nndcr any delusion as to the purely
imaginary chaiactei- of the leason alleged by the German Govern-
ment in ^support of its demand. Jt pretended that it had reliable
information leaving ' no doubt as to the intention of France to
mov^e through Belgian territory ' against (iermany, and consequently
had notified its decision to direct its forces to enter Belgium.-'
The facts themselves supj)ly the answer to the German allegation
that France intended to violate Belgian neutrality. According to
the French plan of mobilisation, the French forces were being
concentrated at that very moment on the German frontier, and it
was necessaiy, by icason of the situation created by the German
violation of Belgian tenijory, to modify the arrangements for their
transport.
In the meantime, at seven o'clock in tiie moriiing of the 3rd
August, at the ex])iiation of the time limit fixed by the ultimatum,
Belgium had sent her re|)ly to the (ierman Minister. Affected
neither by (Germany's promises nor her threats, the Belgian Govern-
ment boldly (Icclaicd that an attack upon Belgian independence
would constitute a flagrant violation of international law. ' No
strategic interest justifies such a violation of law. The Belgian
Government, if they were to accept the proposals submitted to
thom, would sacrifice the honour of the nation and betray their
duty towards Europe." In conclusion, tlic Belgian (iovernment
declared that they were ' firmly resolved to repel by all the means
in their powci- every attack upon their rights.' ^
Even on the :}r(l August, Belgium refused to appeal to the
guarantee of the Powers until there was an actual violation of
territory.-^ It was only on the 4tli August, after German troops had
entered Belgian territory, that the Belgian (iovernment sent his
passports to Hen- von Below,*' and it then appealed to Great Britain,
France and Russia to co-operate as guaranteeing Powers in the
defence of her territory."
' f;rey Book I. No. I!>. - (Jrey liook I. .No. 2(». ' Cnv li<K)k I. No. 2U.
* i'.rey Book I, No. 22. ' Crc-v Book I. No. 24. '■ (Jrey Book I. No. 'Au.
" (Jrcv Book I. .No. 42.
VIOLATION OF TUK LAWS AM) fTSTOMS ()!• WAR 15
At this point it may l><' recalled that the pretext invoked l)y
(Jermany in justification of tlie viohition of Belgian neutrality.
ar)d the invasion of l^elgian territory, seemed to the (merman Govern-
ment itself of so little weight, that in Sir Hklward (ioschen's con-
versations with the (ierman Chancellor, von Bethmann Hollweg,
and with von .Jagow, the Secretary of State, it was not a (pK^stion
of aggnissive French intentions, but a ' matter of life and death to
(ieiniany to advance through Belgium and violate the latters
neutrality." and of ' a scrap of pa])er '.' Further, in his sjx'cch
on the 4th August, the German Chancellor made his well-known
avowal : ' Necessity knows no law. Oui- trooj)s have occupied
fjuxemburg. and perhaps have already entered Belgian territory.
(Gentlemen, that is a breach of international law. . . . We have
been obliged to refuse to pay attention to the justifial)le protests
of Belgium and J.iUxemburg. The wrong — I speak openly — the
wrong we are thereby committing we will try to make good as soon
as our military aims have been attained. He who is menaced, as
we are, and is fighting for his all can only consider how he is to hack
his way through.' To tbis avowal of the German Chancellor there
is added the oveivvhelming testimony of Count von Lerchenfeld. who
stated in a report of the 4th August, 1014, that the German General
Staff considered it ' necessary to cross Belgium : France can only
be successfully attacked from that side. At the risk of bringing
about the intervention of England, Germany cannot lespect Belgian
neutrality." -
As for the Austrian Government, it waited until the 28th August
to declare wai' against Belgium,'' but as early as the middle of the
month ' the motor batteries sent by Austria have proved their
excellence in the l)attles around Nam in* ','' as appears from a pro-
clamation of the German general who at the time was in command
of the fortress of Liege, which German troops had seized. Con-
sequently, the participation of Austria-Hungary in the violation
of Belgian neutrality is aggravated by the fact that she took part
in that violation without any previous declaration of war.
B . — Luxetnlm rq
The neutrality of Luxemburg was guarantet^d by Article 2 of the
Treaty of London, 11th May, 1867, Prussia and Austria-Hungary
1 Blue liook, No. 160.
- Stenograj)hiscljc Berichte ul>er die Verhandlimgcn des lieiclistags, Oienstag,
4 August, 1914. See also E. Miihler, 'Des Weltkriegen uiid das N'olkerreclit,'
lieilin, G. Heimer, l»lo, pp. 24 el seq.
=' Grey Book I. No. 77. * Grey l3ook 11. No. 1()4.
I<) VIOLATION (H' IHK I>A\V.S AND ( I'STOMS f)K WAR
Ix'in*; two of the ^naiaiitor Powcis. On tlic I'lul August, l!H4,
(Joinian troops ])tMU'trat(Ml tlio territory of tlir (Jiarid Duchy.
Mr. Kysclu'M, Minister of State of J^uxeniburg. iinniediately made
an energetic ])i'otest.'
The (Jennan (Jovernnient alleged ' that military measures had
become inevitable, because tiustwoithy news liad l)(»en rctceived
that Kiench forces were marching on Luxemburg." This allegation
was at once refuted by !\lr. Kyschen.-
CONCLUSION
The neutrality of Belgium, guaranteed by the Treaties of the 19th
April, 1839, and that of Luxemburg, guaranteed by the Treaty of the
11th May, 1867, were deliberately violated by Germany and Austria-
Hungary.
CHAPTER II
VIOLATIONS OF THE LAWS AND (TSTOMS OF WAR
On the second point submitted by the Conference, the facts as
to breaches of the laws and cK.stoin.s of war cohiniitfefJ Ity the forces
of the German Kinpire and their allies on land, on sea, and in the air,
(hiring the present war. the Commission has considered a large
number of documents. The l-»ei)ort of the British Commission
drawn up by Lord Bryce, *the labours of the Fi-cnch Commission
presided over by M. Payelle. the numerous ]Mil)lications of the
Belgian Government, the Memorandum submitted by the Belgian
Delegation, the Memorandum of the Greek Delegation, the docu-
ments lodged by the Italian Government, the formal denunciation
by the Greeks at the Conference of the crimes committed against
Greek po])ulations by the Bulgans, Turks and Greeks, the Memoran-
dum of the Serbian Delegation, the Report of the Inter-Allied Com-
mission on the violations of the Hague (Conventions and of inter-
national law in general, committed between IJMi") and HMS by the
Bulgars in occupied Serbia, the summary of the Polish Delegation,
together with the Roumanian and Armenian Memoranda, supply
abundant evidence of outrages of every descri))tion committed on
land, at sea, and in the air, against the laws and customs of wai-
and of the laws of humanity.
In s])ite of the explicit legulations, of established customs, and of
' Yellow Book, No. 131.
- Tolcgrani to the German Ministry of Foicign Affairs, the 2nd August, 1914.
VIOLATION OF THE LAWS AND CUSTOMS OF WAR 17
the clear dictates of humanity, Germany and her alHcH have piled
outrage upon outrage. Additions are daily and continually being
made. By way of illustration a certain number of examples have
been collected in Annex 1. It is impossible to imagine a list of
cases so diverse and so painful. Violations of the rights of com-
batants, of the rights of civilians, and of the rights of both, are
multiplied in this list of tho(most cruel practices which primitive
barbarism, aided by all the resources of modern science, could
devise for the execution of a system of terrorism carefully planned
and carried out to the end. Not even prisoners, or wounded, or
women, or children have been respected by belligerents who delibe-
rately sought to strike terror into every heart for the purpose of
repressing all resistance. Murders and massacres, tortures, shields
formed of living human beings, collective penalties, the arrest and
execution of hostages, the requisitioning of services for military
purposes, the arbitrary destruction of public and private property,
the aerial bombardment of open towns without there being any
regular siege, the destruction of merchant ships without previous
visit and without any precautions for the safety of passengers and
crew, the massacre of prisoners, attacks on hospital ships, the
poisoning of springs and of wells, outrages and profanations without
regard for religion or the honour of individuals, the issue of counter-
feit money reported by the Polish Government, the methodical and
deliberate destruction of industries with no other object than to
promote German economic supremacy after the war, constitute the
most striking list of crimes that has ever been drawn up to the
eternal shame of those who committed them. The facts are estab-
lished. They are numerous and so vouched for that they admit
of no doubt and cry for justice. The Commission, impressed by
their number and gravity, thinks there are good grounds for the
constitution of a special Commission, to collect and classify all
outstanding information for the purpose of preparing a complete
list of the charges under the following heads : —
The following is the list arrived at : —
(1.) Murders and massacres ; systematic terrorism.
(2.) Putting hostages to death.
(3.) Torture of civilians.
(4.) Deliberate starvation of civilians.
(5.) Rape.
(6.) Abduction of girls and women for the purpose of enforced
prostitution.
1569.28 C
o
is VIOLATION OF THE LAWS AND CUSTOMS OF WAR
(7.) Deportation of civilians.
(8.) Internment of civilians under inhuman conditions.
({).) Forced labour of civilians in connection with the military
operations of the enemy.
%^ (10.) Usurpation of sovereignty during military occupation.
^ (11.) Compulsory enlistment of soldiers among the inhabitants
of occupied territory.
(12.) Attempts to denationalise the inhabitants of occupied
territory.
(13.) rillpge.
o (14.) (Confiscation of property.
/ (15.) Exaction of illegitimate or of exorbitant contributions and
requisitions.
^ (16.) Debasement of the currency, and issue of spurious
currency.
L (17.) Imposition of collective penalties.
(18.) Wanton devastation and destruction of property.
(19.) Deliberate bombardment of undefended places.
(20.) Wanton destruction of religious, charitable, educational,
and historic buildings and monuments.
(21.) Destruction of merchant ships and passenger vessels
without warning and without provision for the safety
of passengers or crew,
(22.) Destruction of fishing boats and of relief ships.
(23.) D<;liberate bombardment of hospitals.
(24.) Attack on and destruction of hospital ships.
(25.) Breach of other rul(\s relating to the Red Cross.
(26.) Use of deleterious and asphyxiating gases.
(27.) Use of explosive or expanding bullets, and other inhuman
appliances.
(28.) Directi ns to give no quarter.
^ (29.) Ill-treatment of wounded and prisoners of war.
(30.) Employment of prisoners of war on unauthorised works.
(31.) Misuse of flags of truce.
(32.) Poisoning of wells.
The Commission desires to draw attention to the fact that tlic
offences enumerated and the particulars given in Annex I are not
regarded as complete and exhaustive ; to these such additions can
from time to time be made as may seem necessary.
VIOLATION OF THE LAWS AND CUSTOMS OF WAR 19
CONCLUSIONS
1. The war was carried on by the Central Empires together with their
allies, Turkey and Bulgaria, by barbarous or iUegitimate methods in
violation of the established laws and customs of war and the elementary
laws of humanity.
2. A Commission should be created for the purpose of collecting and
classifsring systematically all the information already had or to be obtained,
in order to prepare as complete a list of facts as possible concerning the
violations of the laws and customs of war committed by the forces of the
German Empire and its Allies, on land, on sea and in the air, in the course
of the present war.
CHAPTER III
PERSONAL RESPONSIBILITY
The third point submitted by the Conference is thus stated : —
The degree of responsibility for these offences attaching to
particular members of the enemy forces, including members of
the General Staffs and other individuals, hcnvever highly placed.
For the purpose of dealing with this point, it is not necessary to
wait for proof attaching guilt to particular individuals. It is quite
clear from the information now before the Commission that there
are grave charges which must be brought and investigated by
a Court against a number of persons.
In these circumstances, the Commission desire to state expressly
that in the hierarchy of persons in authority, there is no reason why
rank, however exalted, should in any circumstances protect the
holder of it from responsibility when that responsibility has been
established before a properly constituted tribunal. This extends
even to the case of Heads of States. An argument has been raised
to the contrary based upon the alleged immunity, and in particular
the alleged inviolability, of a Sovereign of a State. But this privilege,
where it is recognised, is one of practical expedience in municipal
law, and is not fundamental. However, even if, in some coimtries,
a Sovereign is exempt from being prosecuted in a national court
of his own country the position from an international point of view
is quite different.
We have later on in our Report proposed the establishment of
a High Tribunal composed of judges drawn from many nations,
and included the possibility of the trial l)efore that Tribunal of
a former Head of a State with the consent of that State itself
secured by articles in the Treaty of Peace. If the immunity of
20 VIOLATION OK TllK LAWS AND CUSTOMS Ol' WAR
•{ A St)vcrrinn i-< clainu'd lo cxtiMul lu'vond i\\r limits above stated,
it would inv()lvt> layiuj; «Ioum the jjiiiiciple that the greatest outra^j-s
ii^ainst t Ih> laws and etist<nns of wai- and the laws of humanity, if
|trnved a^;lin>^t him. covdd in no eiicumstanees he punished. Sueh
;i eoi\elu>it>ii would shot jv the conscience ()f < ivili/cd mankind.
In view of I he j^raxc ( har^es wliicli may he pi-eferred ■ij.jainst —
to t;iUe oiu- cax the c\ Kaiser the vindicatioti of the piintipies
of the laws and cii^toius «tf war anil the laws of hunumity wlich
have Iteen \iolated would he incomplete if he were not l)rou^ht to
trial and if other i IT nders less highly placed were punished. Alore-
.•\er. the tri il of the ofVenders mi^dit he seriously ])rejudiee(l if they
atti'mjtteil and were altle to plead the supeiior ordcMs of a Sovereign
ai^ain^t whom no .steps had heen or were h»'ing taken.
There is little doult that the ex Kaiser and others in liigh
authority were cognisant of ami could at least have mitigated the
harhai ities committed during the course of the war. A word from
them would have I)rought ahout a difT«Tent method in the a(tion
of their suhordiiuites on land, at sea and ii^ the air.
We desire to say. that < ivil and military authorities cannot he
relieved from responsihility hy the mere fact tiiat a higher authority
might hav(> l)t>(>n convicted of the same offence. It will be for the
( "ouit to decide whether a )>ha of superior orders is sutfieient to
ac(|uit the })ers()n chaiged fnun responsihility. 1
CONCLUSION
All persons belongs to enemy countries, however high their position
may have been, without distinction of rank, including Chiefs of States,
who have been guilty of offences against the laws and customs of war
or the laws of humanity, are hable to criminal prosecution.
C1IA1>TER IV
CONSTITITION AND PKOCEDURE OF AN
APPK( ) 1>K I ATE TRIBUNAL
The fourth point submitted to the Commission is stated as
follows -.—-The Cnnstitutinn and Frocedurr of a Tribunal
appropriate for the Trial of these Offences (crimes relating to
the war).
On this question the Commission is of opinion that, having regard
to the multiplicity of crimes committed by those Powers which
\
\
VIOLATION OF THE LAWS AND CUSTOMS OF WAR
ft short time before had on two occasions at the Hague protested
their reverence for right and their respect for the principles of
humanity,^ the public conscience insists upon a sanction which will
put clearly in the light that it is not permitted cynically to profess
a disdain for the most sacred laws and the most formal undertakings.
Two classes of culpable acts present themselves : —
(a.) Acts which provoked the world war and accompanied its
inception.
(6.) Violations of the laws and customs of war and the laws of
humanity.
(a.) Acts which Provoked the War and Accor^panied its Inception
In this class the Commission has considered acts not strictly war
crimes, but acts which provoked the war or accompanied its incep-
tion, such, to take outstanding examples, as the invasion of Luxem-
burg and Belgium.
The premeditation of a war of aggression, dissimulated under
a peaceful pretence, then suddenly declared under false pretexts,
is conduct which the public conscience reproves and Mhich history
will condemn, but by reason of the purely optional character of
the Institutions at The Hague for the maintenance of peace (Inter-
national Commission of Enquiry, Mediation and Arbitration) a wai-
of aggression may not be considered as an act directly contrary
to positive law, or one which can be successfully brought before
a tril>unal such as the Commission is authorised to consider undei-
its Terms of Reference.
Further, any enquiry into the authorship of the war must, to
be exhaustive, extend over events that have happened during many
years in different European countries, and must raise many difficult
and complex problems which might be more fitly investigated by
iiistorians and statesmen than by a tribunal appropriate to the
tiial of offenders against the laws and customs of war. The need
of prompt action is from this point of view important. Any tribunal
aj)propriate to deal with the other offences to which reference is
made might hardly be a good court to discuss and deal decisively
' See the doclaration of Baron iMarschall von Biebcrstciii, who, speakiiiR at the
Hague Conference of I9(J7 with regard to submarine inincB, used the following
(•X) missions : — 'TVlilitary oj)erations are not governed solely by stijnilations of
international law. There are other factors. Conscience, good sense, and the sense
of duty imposed by tlie i)rin£^ipleH of humanity will be the surest guides for the
conduct of sailors, and will constitute the most efTective guarantee against abuses.
The oflicers of the Ccrman Navy, 1 loudly proclaim it, will always fulfil in the
strictest fashion the duties which emanate from the unwritten law of hunuinity and
civilisation.' '. -~~-~~ •~~~
22 VIOLATION OF THE LAWS AND CUSTOMS OF WAK
with such a subject as the authorship of the war. The proceedings
and discussions, charges and counter-charges, if adequately and
dispassionately examined, might consume much time, and the
result might conceivably confuse the simpler issues into which the
tribunal will be charged to enquire. While this prolonged investiga-
tion was proceeding some witnesses might disappear, the recollection
of others would become fainter and less trustworthy, offenders
might escape, and the moral effect of tardily imposed punishment
would be much less salutary than if punishment were inflicted while
the memory of the wrongs done was still fresh and the demand
for punishment was insistent.
We therefore do not advise that the acts which provoked the
war should be charged against their authors and made the subject
of proceedings before a tribunal.
There can be no doubt that the invasion of Luxemburg by the
Germans was a violation of the Treaty of London of 1867, and
also that the invasion of Belgium was a violation of the Treaties
of 1839. These Treaties secured neutrality for Luxemburg and
Belgium, and in that term were included freedom, independence
and security for the population living in those countries. They
M ere contracts made between the High Contracting Parties to them .
and involve an obligation which is recognised in international Ia^^ .
The Treaty of 1839 with regard to Belgium and that of 18(57
with regard to Lux"emburg were deliberately violated, not by
some outside Power, but by one of the very Powers which had
undertaken not merely to respect their neutrality, but to compel
its observance by any other Power which might attack it. The
neglect of its duty by the guarantor adds to the gravity of the
failure to fulfil the undertaking given. It was the transformation
of a security into a peril, of a defence into an attack, of a protection
into an assault. It constitutes, moreover, the absolute denial of
the independence of States too weak to interpose a serious resis-
tance, an assault upon the life of a nation which resist-s, an assault
against its very existence while, before the resistance was made,
the aggressor, in the guise of tempter, offered material compensa-
tions in return for the sacrifice of honour. The violation of inter-
national law was thus an aggravation of the attack upon the
independence of States which is the fundamental principle of inter-
national right.
And thus a high-handed outrage was committed upon inter-
national engagements, deliberately, and for a purpose which cannot
justify the conduct of those who were responsible.
VIOLATION OF THE LAWS AND CUSTOMS OF WAR 23
The Commission is nevertheless of opinion that no criminal
charge can be made against the responsible authorities or individuals
(and notably the ex-Kaiser) on the special head of these breacht^s
of neutrality, but the gravity of these gross outrages upon the
law of nations and international good faith is such that the Com-
mission thinks they should be the subject of a formal condemnation
by the Conference.
CONCLUSIONS
1. The acts which brought about the war should not be charged against
their authors or made the subject of proceedings before a tribunal.
2. On the special head of the breaches of the neutrahty of Luxemburg
and Belgium, the gravity of these outrages upon the principles of the law
of nations and upon international good faith is such that they should
be made the subject of a formal condemnation by the Conference.
3. On the whole case, including both the acts which brought about the
war and those which accompanied its inception, particularly the violation
of the neutrality of Belgium and Luxemburg, it would be right for the
Peace Conference, in a matter so unprecedented, to adopt special measures,
and even to create a special organ in order to deal as they deserve with
the authors of such acts.
4. It is desirable that for the future penal sanctions should be provided
for such grave outrages against the elementary principles of international
law.
(b.) VioloMons of the Laws and Customs of War and of the Laws of
Humanity
Every beUigerent has, according to international law, the power
and authority to try the individuals alleged to be guilty of the
crimes of which an enumeration has been given in Chapter II.
on Violations of the Laws and Customs of War, if such persons have
been taken prisoners or have otherwise fallen into its power. Each
belligerent has, or has power to set up, pursuant to its own legis-
lation, an appropriate tribunal, military or civil, for the trial of
such cases. These courts would be able to try the incriminated
persons according to their own procedure, and much complication
and consequent delay would be avoided which would arise if all
such cases were to be brought before a single tribunal.
There remain, however, a number of charges : —
. {a.) Against persons belonging to enemy countries who have
\ committed outrages against a number of civilians and
soldiers of several Allied nations, such as outrages committed
24 VIOLATION OF THE LAWS AND CUSTOMS OF WAR
in prison camps where prisoners of war of several nations
were congregated or the crime of forced labour in mines
where prisoners of more than one nationality were forced
to work ;
(6.) Against persons of authority, belonging to enemy countries,
whose orders were executed not only in one area or on one
battle front, but whose orders affected the conduct of opera-
tions against several of the Allied armies :
(c.) Against all authorities, civil or military, belonging to enemy
countries, however high their position may have been,
without distinction of rank, including the heads of States,
who ordered, or, with knowledge thereof and with power
to intervene, abstained from preventing or taking measures
to prevent, putting an end to or repressing, violations of the
laws or customs of war (it being understood that no such
abstention should constitute a defence for the actual per-
petrators) ;
(d.) Against such other persons belonging to enemy countries as,
having regard to the character of the offence or the law of
any belligerent country, it may be considered advisable not
to proceed before a court other than the High Tribunal
hereafter referred to.\
For the trial of outrages falling under these four categories the
Commission is of opinion . that a High Tribunal is essential and
should be established according to the following plan : —
(1.) It shall be composed of three persons appointed by each of
the following Governments : — The United States of America,
the British Empire, France, Italy and Japan, and one person
appointed by each of the following Governments : Belgium,
Greece, Poland, Portugal, Roumania, Serbia and Czecho-
slovakia. The members shall be selected by each country
from among the members of their national courts or tribunals,
civil or military, and now in existence or erected as indicated
above.
(2.) The tribunal shall have power to appoint experts to assist
it in the trial of any particular case or class of cases.
(3.) The law to be applied by the tribunal shall be ' the principles
of the law of nations as they result from the usages estab-
lished among civilised peoples, from the laws of humanity
and from the dictates of public conscience.'
(4.) When the accused is found by the tribunal to be guilty, the
VIOLATION OF THE LAWS AND CUSTOMS OF WAR 25
tribunal shall have the power to sentence him to such
punishment or punishments as may be imposed for such an
offence or offences by any court in any country represented
on the tribunal or in the country of the convicted person.
(5.) The tribunal shall determine its own procedure. It shall
have power to sit in divisions of not leas than five members
and to request any national court to assume jurisdiction
for the purpose of enquiry or for trial and judgment.
(6.) The duty of selecting the cases for trial before the tribunal
and of directing and conducting prosecutions before it shall
be imposed upon a Prosecuting Commission of five members,
of whom one shall be appointed by the Governments of
the United States of America, the British Empire, France,
Italy and Japan, and for the assistance of which any other
Government may delegate a representative.
(7.) Applications by any Allied or Associated Government for
the trial before the tribunal of any offender who has not
been delivered up or who is at the disposition of some other
Allied or Associated Government shall be addressed to the
Prosecuting Commission, and a national court shall not
proceed with the trial of any person who is selected for
trial before the tribunal, but shall permit such person to
be dealt with as directed by the Prosecuting Commission.
(8.) No person shall be liable to be tried by a national court for
an offence in respect of which charges have been preferred
before the tribunal, but no trial or sentence by a court of
an enemy country shall bar trial and sentence by the tribunal
or by a national court belonging to one of the Allied or
Associated States.
CONCLUSIONS
The Commission has consequently the honour to recommend : —
1. That a High Tribunal be constituted as above set out.
2. That it shall be provided by the Treaty of Peace : —
(a.) That the enemy Governments shall, notwithstanding that Peace
may have been declared, recognise the jurisdiction of the
National Tribunals and the High Tribunal, that all enemy persons
alleged to have been guilty of offences against the laws and
customs of war and the laws of humanity shall be excluded
from any amnesty to which the belligerents may agree, and that
the Governments of such persons shall undertake to surrender
them to be tried.
26 VIOLATION OF THE LAWS AND CUSTOMS OF WAR
(6.) That the enemy Governments shall undertake to deliver up and
give in such manner as may be determined thereby : —
(i.) The names of all persons in command or charge of or in
any way exercising authority in or over all civiUan intern-
ment camps, prisoner-of-war camps, branch camps, working
camps and ' commandoes ' and other places where prisoners
were confined in any of their dominions or in territory at
any time occupied by them, with respect to which such
information is required, and all orders and instructions or
copies of orders or instructions and reports in their posses-
sion or under their control relating to the administration
and discipline of all such places in respect of which the
supply of such documents as aforesaid shall be demanded ;
(ii.) All orders, instructions, copies of orders and instructions.
General Staff plans of campaign, proceedings in Naval or
MiUtary Courts and Courts of Enquiry, reports and other
documents in their possession or under their control which
relate to acts or operations, whether in their dominions
or in territory at any time occupied by them, which shall
be alleged to have been done or carried out in breach of
the laws and customs of war and the laws of humanity ;
(ill.) Such information as will indicate the persons who com-
mitted or were responsible^ for such acts or operations ;
(iv.) All logs, charts, reports and other documents relating to
operations by submarines ;
(v.) All orders issued to submarines, with details or scope of
operations by these vessels ;
(vi.) Such reports and other documents as may be demanded
relating to operations alleged to have been conducted by
enemy ships and their crews during the war contrary to
the laws and customs of war and the laws of humanity.
3. That each Allied and Associated Government adopt such legis-
lation as may be necessary to support the jurisdiction of the
International Court, and to assure the carrying out of its sen-
tences.
4. That the five States represented on the Prosecuting Commission
shall jointly approach Neutral Governments with a view to
obtaining the surrender for trial of persons within their terri-
tories who are charged by such States with violations of the laws
and customs of war and the laws of humanity.
VIOLATION OF THE LAWS AND CUSTOMS OF WAR 27
CHAl^ER V
COGNATE MATTERS
Finally, the Commission was asked to consider any other matters
cognate or ancillary to the above which may arise in the course of
the enquiry, and which the Commission finds it useful and relevant
to take into consideration.
Under this head the Commission has considered it advisable to
draft a set of provisions for insertion in the Preliminaries of Peace,
for the assuring in practical form, in accordance with the recom-
mendations at the end of the last chapter, the constitution, the
recognition, and the mode of operation of the High Tribunal, and
of the national tribunals which will be called to try infractions of
the laws and customs of war or the laws of humanity.
The text of these provisions is set out in Annex IV.
March 29, 1919.
United States of America : —
►Subject to the reservations set
forth' in the annexed Memo-
randum. (Annex II.)
ROBERT LANSING.
JAMES BROWN SCOTT.
British Empire : —
ERNEST M. POLLOCK.
W. F. MASSEY.
France :-
Italy : —
Japan : —
A. TARDIEU.
F. LARNAUDE.
V. SCIALOJA.
M. D'AMELIO.
Subject to the reservations set
forth in the annexed Memo-
randum. (Annex III.)
M. ADATCI.
S. TACHI.
Belgium : —
ROLIN-JAEQUEMYNS.
Greece : —
N. POLITIS.
Poland : —
L. LUBIENSKI.
ROUMANIA : —
S. ROSENTAL.
Serbia : —
SLOBODAN YOVANOVITCH.
58 VIOLATION OF THE LAWS AND CUSTOMS OF WAR
ANNEX II
Memorandum of Reservations presented by the Representatives of the
United States to the Report of the Commission on Responsibili-
ties, April 4, 1919.
The American members of the Commission on Responsibilitie8,
in presenting their reservations to the report of the Commission,
declare that they are as earnestly desirous as the other members
of the Commission that those persons responsible for causing the
Great War and those responsible for violations of the laws and
customs of war should be punished for their crimes, moral and
legal. The differences which have arisen between them and their
colleagues lie in the means of accomplishing this common desire.
The American members therefore submit to the Conference on the
Preliminaries of Peace a memorandum of the reasons for their
dissent from the report of the Commission and from certain pro-
visions for insertion in Treaties with enemy countries, as stated in
Annex IV, and suggestions as to the course of action which they
consider should be adopted in dealing with the subjects upon which
the Commission on Responsibilities was directed to report.
Preliminary to a consideration of the points at issue and the
irreconcilable differences which have developed and which make
this dissenting report necessary, we desire to express our high
appreciation of the conciliatory and considerate spirit manifested
by our colleagues throughout the many and protracted sessions of
the Commission. From the first of these, held on February 3,
1919, there was an earnest purpose shown to compose the differ-
ences which existed, to find a formula acceptable to all, and to
render, if possible, a unanimous report. That this purpose failed
was not because of want of effort on the part of any member of
the Commission. It failed because, after all the proposed means
of adjustment had been tested with frank and open minds, no
practicable way could be found to harmonise the differences without
an abandonment of principles which were fundamental. This
the representatives of the United States could not do and they
could not expect it of others.
In the early meetings of the Commission and the three Sub-
Commissions appointed to consider various phases of the subject
submitted to the Commission, the American members declared
that there were two classes of responsibiUties, those of a legal
VIOLATION OF THE LAWS AND CUSTOMS OF WAR 69
nature and those of a moral nature, that legal offences were jus-
ticiable and liable to trial and punishment by appropriate tribunals,
but that moral offences, however iniquitous and infamous and
however terrible in their results, were beyond the reach 'of judicial
procedure, and subject only to moral sanctions.
While this principle seems to have been adopted by the Com-
mission in the report so far as the responsibility for the authorship
of the war is concerned, the Commission appeared unwilling to
apply it in the case of indirect responsibility for violations of the
laws and customs of war committed after the outbreak of the
war and during its course. It is respectfully submitted that this
inconsistency was due in large measure to a determination to
punish certain persons, high in authority, particularly the heads
of enemy States, even though heads of States were not hitherto
legally responsible for the atrocious acts committed by subordinate
authorities. To such an inconsistency the American members of
the Commission were unwilling to assent, and from the time it
developed that this was the unchangeable determination of certain
members of the Commission they doubted the possibility of a
unanimous report. Nevertheless, they continued their efforts on
behalf of the adoption of a consistent basis of principle, appreciating
the desirability of unanimity if it could be attained. That their
efforts were futile they deeply regret.
With the manifest purpose of trying and punishing those persons
to whom reference has been made, it was proposed to create a
high tribunal with an international character, and to bring before
it those who had been marked as responsible, not only for directly
ordering illegal acts of war, but for having abstained from preventing
such illegal acts.
Appreciating the importance of a judicial proceeding of this
nature, as well as its novelty, the American Representatives laid
before the Commission a memorandum upon the constitution and
procedure of a tribunal of an international character which, in
their opinion, should be formed by the union of existing national
mUitary tribunals or commissions of admitted competence in the
premises. And in view of the fact that ' customs ' as well as ' laws '
were to be considered, they filed another memorandum, attached
hereto, as to the principles which should, in their opinion, guide
the Commission in considering and reporting on this subject.
The practice proposed in the memorandum as to the military
commissions was in part accepted, but the purpose of constituting
a high tribunal for the trial of persons exercising sovereign rights
GO VIOLATION OF THE LAWS AM) CUSTOMS OF WAR
was ])ersiste(l in, «and the ubstentioii troni pi(;v(uiting violations of
the laws and eustonis of war and of humanity was insisted upon.
It was frankly stated that the ])ui))ose was to bring before this
tribunal the ex -Kaiser of (Jermany, and that tlie jurisdiction of
the tribunals must be broad enough to include him even if he had
not directly oitlered the violations.
To the unprecedented proposal of creating an international
criminal tribunal and to tlu, doctrine of negative (-riminality the
American mem))ers refused to give their assent.
On January 25, 1919, the Conference on the Preliminaries of
Peace in plenary session rectommended the ap])ointment of a Com-
mission to examine and to report to the Conference upon the follow-
ing five points : —
1. The responsibility of the authors of the war.
2. The facts as to the violations of the laws and customs of war-
committed by the forces of the German Emj^ire and its
allies, on land, on sea, and in the air during the present
war.
3. The degree of responsibility for these ciinies attaching to
particular members of the enemy forces, including mem-
bers of the General Staffs, and othei- individuals, however
highl}'^ placed.
4. The constitution and ])rocedure of a tribunal appropriate foe
the trial of these offences.
~). Any other matters cognate or ancillary to the above points
which may arise in the course of the enf[uiry, and which
the Commission finds it useful and relevant to take into
consideration.
1
The conclusions reached by the Commission as to the responsi-
bility of the authors of the wai\ with which the llepresentatives of
the United States agree, are thus stated : —
The war was premeditated by the Cential Powcis, together with
their Allies, Tuikey and Bulgaria, and was the result of
acts delibciately committed in order to make it unavoid-
able.
Germany, in agreement with Austria-Hungary, tleliberatel>
worked to defeat all the many conciliatory proposals
made by the Etitoifr Towcis and their icjxatcd ('fY<)rt>
to avoid war.
VIOLATION OF THE LAWS AND CUSTOMS OK WAR 61
The American Jle])resentatives arc happy to declare tliat they
not only concur in these conclusions })ut also in the process of
reasoning by which thej' are reached and justified. However, in
addition to the evidence adduced by the (Commission, leased for
the most j)art upon official memoranda issued by the various
(!overnments in justification of their respective attitudes towards
the Serbian question and the war which resulted because of the
deli})erate determination of Austria-Hungary and Germany to
crush that gallant little country which blocked the way to the
Dardanelles and to the realisation of their larger ambitions, the
American Representatives call attention to four documents, three
of which have been made known by His Excellency Milenko R.
Vasnitch, Serbian Minister at Paris. Of the three, the first is repro-
duced for the first time, and two of the others were only published
during the sessions of the Commission.
The first of these documents is a report of Von Wiesner, the
Austro-Hungarian agent sent to Serajevo to investigate the assas-
sination at that place on June 28, 1914, of the Archduke Francis
Ferdinand, heir to- the Austro-Hungarian Throne, and the Duchess
of Hohenberg, his morganatic wife.
The material portion of this report, in the form of a telegram, is
as follows : —
' Herr von Wiesner, to the Foreign Ministry, Vienna.
Serajevo, July 13, 1914^ 1.10 p.m.
' Cognizance on the part of the Serbian Governm nt, par-
ticipation in the. murderous assault, or in its preparation, and
supplying the weapons, proved by nothing, nor even to be sus-
pected. On the contrary there are indications which cause this
to be rejected.' *
The second is likewise a telegram, dated Berlin, July 25, 1914,
from Count Szoegeny, Austro-Hungarian Ambassador at Berlin, to
the Minister of Foreign Affairs at Vienna, and reads as follows : —
' Here it is generally taken for granted that in case of a possible
refusal on the part of Serbia, our immediate declaration of war
will be coincident with military operations.
* Herr v. Wiesner an Minislerium des Aevssern in Wien.
Sarajevo, 13. Jvli 1914, l.IO p.m.
Mitwissenschaft .scrbischcr Regicrung, I.<'itiing an Attentat oder (lesson Vor-
hereitung und lieistellung der VVaffen, durch niclits erwiescn odcr auch nur y.u
vermuten. Ks bestehen vielmchr Anhalts])uiiktc, dies als ausgeschlossen anzuschcn.
62 VIOLATION OF THE LAWS AND CUSTOMS OF WAR
Delay in beginning military operations is here considered as
a great danger because of the intervention of other Powers.
We are urgently advised to proceed at once and to confront
the world with n fait accompli.' *
The third, likewise a telegram in cipher, marked ' strictly con-
fidential,' and dated Berlin, July 27, 1914, two days after the
Serbian reply to the Austro-Hungarian ultimatum and the day
before the Austro-Hungarian declaration of war upon that devoted
kingdom, was from the Austro-Hungarian Ambassador at Berlin
to the Minister of Foreign Affairs at Vienna. The material portion
of this document is as follows : —
' The Secretary of State informed me very definitely and in the
strictest confidence that in the near future possible proposals for
mediation on the part of England would be brought to Your
Excellency's knowledge by the German Government.
' The German Government gives its most binding assurance
that it does not in any way associate itself with the proposals ; on
the contrary, it is absolutely opposed to their consideration and
only transmits them in compliance with the English request.' f
Of the English propositions, to which reference is made in the
above telegram, the following may be quoted, which, under date
July 30, 1914, Sir Edward Grey, Secretary of State for Foreign
Affairs, telegraphed to Sir Edward Goschen, British Ambassador at
Berlin : —
' If the peace of Europe can be preserved, and the present
crisis safely passed, my own endeavour will be to promote some
arrangement to which Germany could be a party, by which she
could be assured that no aggressive or hostile policy would be
• Graf Szoegeny an Minister des Aeussern in Wien.
(285.) Berlin, 25. J uli 1914. .
Hier wird allgeniein vorausgpsctzt, dass auf cventuelle abweisende Antwort
Serbiens sofort unsere Kriegserklarung vcrbundcn niit kriegischen Operationen
erfolgcn werde.
Man sieht hier in jeder Verzogerung dcs Beginnes der kriegerischen Operationen
grosse Gefahr betreffs EinmiHchung anderer Miichte.
Man riit uns druigendst sofort vorzugehen und Welt vor einfail accompli zu stellcn.
f (Iraf Szoegeny an Minialeriiim des Aeussern in Wien.
*
(307, Strong vertraulich.) Berlin, 27. JuU 11)14.
Staat.'fsekretar erkliirte m''r in streng vertraidiclier Form sehr entachiedcn, da.s.s'
in der niichsten Zeit cventuelle V^ermittlung.svorschlage Englands duroh die deutsche
Hegiening zur Kenntnis Euer F^xc. gehracht wiirden.
l)ie deut.sche liogierung v'ersichcre auf das Biindigste. dnss sie sich in kein^r Weise.
mil den Vcyrschldgen idenlificire, sogar entschieden gegen derer PJeriioksichtigung soi.
und dieselben nur, uni der englisclien Bitte Rechnung zu tragen, weitergcbe.
VIOLATION OF THE LAWS AND CUSTOMS OF WAR 63
pursued against her or her allicH l)y France,. RusHia, and ourselves,
jointly or separately.' *
While comment upon these telegrams would only tend to weaken
their force and effect, it may nevertheless be observed that the last »
of them was dated two days before the declaration of war by Ger-
many, against Russia, which might have been prevented, had not
Germany, flushed with the hope of certain vfctory and of the fruits
of conquest, determined to force the war.
The report of the Commission treats separately the violation of
the neutrality of Belgium and of Luxem})urg, and reaches the
conclusion, in which the American Representatives concur, that
the neutrality of both of these countries was deliberately violated.
The American Representatives believe, however, that it is not eno^h
to state or to hold with the Commission that ' the war was pre-
meditated by the Central Powers,' that ' Germany, in agreement
with Austria-Hungary, deliberately worked to defeat all the many
conciliatory proposals made by the Entente Powers and their repeated
efforts to avoid war,' and to declare that the neutrality of Belgium,
guaranteed by the Treaty of the 19th of April, 1839, and that of
Luxemburg, guaranteed by the Treaty of the 11th of May, 1867,
were deliberately violated by Germany and Austria-Hungarj.
They are of the opinion that these acts should be condemned in
no uncertain terms and that their perpetrators should be held up
to the execration o4^ mankind.
II
The second question submitted by the Conference to the Com-
mission requires an investigation of and a report upon ' the facts
as to breaches of the laws and customs of war committed by the
forces of the German Empire and their Allies, on land, on sea, and
in the air, during the present war." It has been deemed advisable
to quote again the exact language of the submission in that it is at
once the authority for and the limitation of the investigation and
report to be made by the Commission. Facts were to be gathered,
but these facts were to be not of a general but of a very specific
kind, and were to relate to the violations or ' breaches of the laws
and customs of war.' The duty of the Commission was, therefore,
to determim? whether the facts found were violations of the laws
and customs of war. It was not asked whether these facts were
* British Parliamentary Papers, ' Miscellaneou.s, No. 10 (191.3),' 'Collected
Documents relating to the Outbreak of the Euroi)ean War,' p. 78.
64 VIOLATION OF THE LAWS AND CUSTOMS OF WAR
violations of tlio laws or of the principles of humanity. Neverthclesfl,
the report of the Commission does not, as in the opinion of the
American Representatives it should, confine itself to the ascertain-
ment of the facts and to their violation of th(> hxws and customs of
war. but, going beyond the terms of the mandate, declares that the
facts found and acts committed were in violation of the laws and
of the elementary principles of humanity. The laws and customK
of war arc a standard certain, to be found in books of authority
and in the practice of nations. The laws and principles of humanity
vary with the individual, which, if for no other reason, should
exclude them from consideration in a court of justice, especially one
charged with the administration of criminal law. The American
Representatives, therefore, objected to the references to the laws
and principles of humanity, to be found in the report, in what they
believed was meant to be a judicial proceeding, as, in their opinion,
the facts found were to be violations or breaches of the laws and
customs of war, and the persons singled out for trial and punish-
ment for acts committed during the war were only to be those
persons guilty of acts which should have been committed in violation
of the laws and customs of war. With this reservation as to the
invocation of the principles of humanity, the American Representa-
tives are in substantial accord with the conclusions reached by the
Commission on this head that :
1. The war was carried on by the Central Empires, together with
their Allies, Turkey and Bulgaria, by barbarous or illegiti-
mate methods in violation of the established laws and
customs of war and the elementary principles of humanity.
2. A Commission should be created for the pur]X)se of collecting
and classifying systematically all the information already
had or to be obtained, in order to prepare as complete a list
of facts as possible concerning the violations of the laws
and customs of war committed ])y the forces of the German
Empire and its allies, on land, on sea, and in the air, in
the course of the present war.
However, \n view of the recommendation that a Commission be
appointed to collect further information, the American' Repre-
sentatives believe that they should content themselves with a mere
expression of concurrence as to the statements contained in the
report upon which these conclusions are based.
VIOLATION OF THK LAVSS AM) crsTO.M.S OF WAR <)r>
III
The third (juestion submitted to tii»'. ("ommi.ssicMi on ReH])onsi-
bihties requires an expression i)f opinion concerning ' the dcgiee
of responsibility tor these offences attaching to |)articular members
of the enemy forces, including mcml)ers of the (Jeneral Staffs, an<l
other individuals, however highly placed.' Th(! conclusion which
the Commission reached, and which is stated in the report, is to
the effect that " all persons belonging to enemy countries, however
high their position may have been, without distinction of rank,
including Chiefs of States, who have been guilty of offences against
the laws and customs of war or the laws of humanity, are Hable
to criminal prosecution.' The American Rf^prcscntatives are unable
to agree with this conclusion, in so far as it subjects to criminal,
and, therefore, to legal prosecution, persons accused of offences
against ' the laws of humanity,' and in so far as it subjects Chiefs
of States to a degree of responsibilitj'^ hitherto unknown to municipal
or international law, tor whicli no precedents arc to be found in
the modern practice of nations.
Omitting for the present the ([uestion of ciiminal liability for
offences against the laws of humanity, which will he considered in
connection with the law to be administered in the national tribunals
and the High Court, whose constitution is recommended by tlic
Commission, and likewise reserving for discussion in connection
with the High Court the question of the liability of a chief of State
to criminal prosecution, a reference may properly be made in this
place to the masterly and hitherto unanswered opinion of Chief
Justice Marshall, in the case of the Schooner Exchamje v. McFaddon
and Others (7 Cranch, 110), decided by the Supreme Court of the
United States in 1812, in which the reasons are given for the
exemption of the sovereign and of the sovereign agent of a State
from judicial process. This does not mean that the head of the
State, whether he be called emperor, king, or chief executive, is
not responsible for breaches of the law, but that he is responsible
not to the judicial but to the political authority of his country.
His act may and does bind his country and render it responsible
for the acts which he has committed in its name and its behalf,
or under cover of its authority ; but he is, and it is submitted that
he should be, only responsible to his country, as otherwise to hold
would be to subject to foreign countries, a chief executive, thus
withdrawing him from the laws of his country, even its organic
law, to which he owes obedience, and subordinating him to foreign
1569.28 J.
06 VIOLATION OK THE LAWS AND CUSTOMS OF WAR
jurisdictions to which ncithoi- he nor his country owes allegiance
or obedience, thus denying the very conception of sovereignty.
But the law to which the head of the State is responsible ia the
law of his country, not the law of a foreign country or group of
countries ; the tiibunal to which he is responsible is the tribunal
of his country, not of a foreign country or group of countries, and
the punishment to be inflicted is the ])unishnient prescribed by the
law in force at the tirnc of the commission of the act, not a punish-
ment created after the commission of the act.
These observations the American HeprescTitatives believe to be
applicable to a head (»f a State actually in office and engaged in
the performan(te of his duties. They do not apply to a head of
a State who has abdicated or has been repudiated by his people.
Proceedings against him might be wise or unwise, but in any event
they would be against an individual out of office and not against
an individual in office and thus in effect against the State.
The American Representatives also believe that the above
observations a[)ply to liability of the head of a State for violations
of positive law in the strict and legal sense of the term. They are
not intended to apply to what may be called political offences and
to political sanctions.
These are matters for statesmen, not for judges, and it is for
them to determine whether or not the violators of the Treaties
guaranteeing the neutrality of Belgium and of Luxemburg should
be subjected to a political sanction.
However, as questions of this kind seem to be beyond the man-
date ot the Conference, the American Representatives consider it
unnecessary to enter upon their discussion.
IV
The fourth question calls for an investigation of and a report
upon ' the constitution and procedure of a tribunal appropriate for
the trial of these offences.' Apparently the Conference had in mind
the violations of the laws and customs of war, inasmuch as the
(-ommission is required by the third submission to report upon
' the degree of responsibility for these offences attaching to par-
ticular members of the enemy forces, including members of the
General Staffs and other individuals, however highly placed.' The
fourth point relates to the constitution and procedure of a tribunal
appropriate for the investigation of these crimes, and to the trial
and punishment of the persons accused of their commission, should
they be found guilty. The Commission seems to have been of the
VIOLATION OF THF: LAWS AM) fTSTOM.S Ol WAR 07
()])inioi) that the tribunal refcncd to in llu' tourth point \va> to
<h'al with the crimes specified in the second and thiid suhinissions,
not with the responsi})iUty of the authors of tlie wai-. as appears
from the following statement taken from the report : —
■ On the whole case, including Ijoth tlie acts which brought about
the war and those which accompanied its ince})tion. par-
ticularly the violation of the neutrality of I^\ixemburg and
■ of Belgium, the Commission is of tlie opinion that it would
be right for the Peace Conference, in a matter so unpre-
cedented, to adopt special measures, and even to create
a special organ in order to deal as they deserve with the
authors of such acts.
This section of the report, however, deals not only with the
laws and customs of war — improperly adding ' and of the laws of
humanity' — but also with the 'acts which provoked the war and
accompanied its inception,' which either in whole or in ])art would
appear to fall more appropriately under the first submission relating
to the ' responsibility of the authors of the war.'
Of the acts which provoked the war and accompanied its incc|)-
tion, the Commission, with special reference to the violation of the
neutrality of Luxemburg and of Belgium, says : ' We therefore do
not advise that the acts which provoked the war should be charged
against their authors and made the subject of proceedings before
a tribunal.' And a little later in the same section the report con-
tinues : ' The (Commission is nevertheless of opinion that no ciiminal
charge can be made against the res])onsible authorities or individuals,
and notably the ex-Kaiser, on the special head of these breaches
of neutrality, but the gravity of these gross outrages upon the law
of nations and international good faith is such that the Commission
thinks they should be the subject of a, formal confJemnation hy the,
(Conference.' The American Representatives are in thorough accord
with these views, which are thus formally stated in the first two
of the foui- conclusions under this heading : —
The acts which biought about the war should not be charged
against their authors or made the subject of proceedings
before a tribunal.
On the special head of the breaches of the neutrality of Luxemburg
and Belgium, the gravity of these outrages upon the |)iinciple,s
of the law of nations and upon i)iternational good faith is
such that they should be made the subject of a formal
condemnation by the Conference.
F 2
('>S VIOLATION OF TM K LAWS \SD CUSTOMS OF WAR
If the report had stopped here, the American Representatives
wouhl be able to concur in \\\v conclusions under this heading and
the reasoning by which they were justified, for hitherto the authors
of war. however unjust it may be in tiie forum of morals, have
not been l)rought before a court of justice upon a criminal charge
foi' trial and punishment. The report specifically states : (1) that
' a war of aggression may not be considered as an act directly
contrary to positive law, or one which can be successfully brought
before a tribunal such as the Commission is authorised to consider
under its Terms of Reference ' ; the Commission refuses to advise
(2) ■ that the acts which ])rovoked the war should be charged
agaii\st their authors and made the subject of proceedings before
a tribunal ' ; it further holds (3) that ' no criminal charge can be
made against the responsible authorities or individuals, and notably
the ex-Kaiser, on the special head of tJiese breaches of neutrality.'
The American Representatives, accepting each of these statements
as sound and unanswerable, are T^evcrtheless unable to agree with
the third of the conclusions based upon them : —
On the whole case, including both the acts which brought about
the war and those which accompanied its inception, par-
ticularly the violation of the neutrality of Belgium and
Luxemburg, it would be right for the Peace Conference, in
a matter so unprecedented, to adopt special measures, and
even to create a special organ in order to deal' as they deserve
with the authors of such acts.
'^ The American Representatives believe that this conclusion is
inconsistent both with the reasoning of the section and with the
first and second conclusions, and that ' in a matter so unprece-
dented,' to quote the exact language of the third conclusion, they
are relieved from comment and criticism. However, they olxserve
that, if the acts in question are ciiminal in the sense that they are
punishable under law, they do not understand why the report
should not advise that these acts be punished in accordance with
the terms of the law. If, on the other hand, there is no law making
them crimes or affixing a penalty for their commission, they are
moral, not legal, crimes, and the American Representatives fail to
see the advisability or indeed the appropjiateness of creating
a special organ to deal with the authors of such acts. In any event,
the organ in question should not be a judicial tribunal.
In order to meet the evident desire of the Commission that
a special organ be created, without however doing violence to their
VIOLATION OF THK LAWS AND CUSTOMS OF WAR 09
own scruples in the premises, the American RepresentativtM^ pro-
posed—
The Commission on Responsibilities recommtyids that : —
1. A Commission of Inquiry be established to consider generally
the relative culpability of the authors of the war and also
the question of their culpability as to the violations of the
laws and customs of war committed dining its course.
2. The Commission of Inquiry consist of two meml)ers of the
five following Powers : United States of America, British
Empire, France, Italy, and Japan ; and one member from
each of the five following Powers : Belgium, Greece,
Portugal, Roumania, and Serbia.
3. The enemy be required to place their archives at the disposal
of the Commission which shall forthwith enter upon its
duties and report jointly and separately to their respective
Governments on the 11th November, 1919, or as soon
thereafter as practicable.
The Commission, however, failed to adopt this proposal.
The fourth and final conclusion under this heading declares it to
be ' desirable that for the future penal sanctions should be provided
for such grave outrages against the elementary principles of inter-
national law.' With this conclusion the American Representatives
find themselves to be in substantial accord. They believe that
any nation going to war assumes a grave responsibility, and that
a nation engaging in a war of aggression commits a crime. They
hold that the neutrality of nations should be observed, especially
when it is guaranteed by a treaty to which the nations violating it
are parties, and that the plighted word and the good faith of nations
should be faithfully observed in this as in all other respects. At
the same time, given the difficulty of determining whether an act
is in reality one of aggression or of defence, and given also the
difficulty of framing penal sanctions, where the consequences are
so great or may be so great as to be incalculable, they hesitate as
to the feasibility of this conclusion, from which, however, they are
unwilling formally to dissent.
With the portion of the report devoted to the ' constitution and
procedure of a tribunal appropriate for the trial of these offences,'
the American Representatives are unable to agree, and their views
differ so fundamentally and so radically from those of the Com-
mission that they found themselves obliged to oppose the views of
their colleagues in the Commission and to dissent from the state-
F 3
70 VIOLATION OF THE LAWS AND CUSTOMS OF WAR
ment of those views as recorded in the report. The Americah
Representatives, however, agree with the introductory paragraph
of this section, in which it is stated that ' every belUgerent has,
according to international law, the power and authority to try the
individuals alleged to be guilty of the crimes ' constituting violations
of the laws and customs of war, ' if such persons have been taken
prisoners or have otherwise fallen into its power.' The American
Representatives are likewise in thorough accord with the further
pi*o visions that ' each belligei"nt has, or has power to set up, pur-
suant to its own legislation, an appropriate tribunal, military or
civil, for the trial of such cases.' The American Representatives
concur in the view that ' these courts would be able to try the
incriminated persons according to their own procedure,' and also
in the conclusion that ' much complication and consequent delay
would be avoided which would arise if all such cases were to be
brought before a single tribunal,' supposing that the single tribunal
could and should be created. In fact, these statements are not only
in accord with but are based upon the memorandum submitted by
the American Representatives, advocating the utilisation of the
military commissions or tribunals either existing or which could be
created in each of the belligerent countries, with jurisdiction to pass
upon offences against the laws and customs of war committed by
the respective enemies.
This memorandum already referred to in an earlier paragraph is
as follows : —
1 . That the military authorities, being charged with the inter-
pretation of the laws and customs of war, possess jurisdic-
tion to determine and punish violations thereof ;
2. That the military jurisdiction for the trial of persons accused
of violations of the laws and customs of war and for the
punishment of persons found guilty of such offences is
exercised by military tribunals ;
3. That the jurisdiction of a military tribunal over a person
accused of the violation of a law or custom of war is
acquired when the offence was committed on the territory
of the nation creating the military tribunal or when the
person or property injured by the offence is of the same
nationality as the military tribunal ;
4. That the law and procedure to be applied and followed in
determining and punishing violations of the laws and
customs of war are the law and the procedure for determin-
VIOLATION OF THE LAWS AM) CUSTOMS OF WAR 71
ing and punishing such violations cstabHshed by tho
military law of the country against which the offence is
committed ; and
o. That in case of acts violating the laws and customs of war
involving more than one country, the military tribunals
of the countries affected may be united, thus forming an
international tribunal for the trial and punishment of
persons charged with the commission of such offences.
In a matter of such importance affecting not one but many
countries and calculated to influence their future conduct, the
American Representatives believed that the nations should use
the machinery at hand, which had been tried and found compett'nt,
with a law and a procedure framed and therefore known in advancV,
rather than to create an international tribunal with a criminal
jurisdiction for which there is no precedent, precept, practice, or ,
procedure. They further believed that, if an act violating the laws
and customs of war committed by the enemy affected more than
one country, a tribunal could be formed of the countries affected
by uniting the national commissions or courts thereof, in which
event the tribunal would be formed- by the mere assemblage of the
members, bringing with them the law to be applied, namely, the
laws and customs of war, and the procedure, namely, the procedure
of the national commissions or courts. The American Representatives
had especially in mind the case of Henry Wirz, commandant of the
Confederate prison at Andersonville, Georgia, during the war
between the Htates, who after that war was tried by a military
commission, sitting in the city of Washington, for crimes contrary
to the laws and customs of war, convicted thereof, sentenced to
be executed, and actually executed on the J 1th November,
1865.
While the American Representatives would have preferred a
national military commission or court in each country, for which
the Wirz case furnished ample precedent, they were willing to
concede that it might be advisable to have a commission of repre-
sentatives of the competent national tribunals to pass upon charges,
as stated in the report : — ,
(a) Against persons belonging to enemy countries who have
committed outrages against a number of civilians and
soldiers of several Allied nations, such as outrages com-
mitted in prison camps where prisoners of war of several
nations were congregated or the crime of forced labour
72 VIOLATION OF THE LAW S AND CUSTOMS OF WAR
ill Djiiies where piisoners of more than one nationality
were forced to work.
{h) Against persons of anthority, belonging to enemy countries,
whose orders were executed not only in one area or on
one battle front, but whose orders affected the con<iuct
■towards several of the Allied armies.
'J'he American Representatives are, however, unable to agree that
a mixed commission thus composed should, in the language of the
report, entertaiii charges : —
(r) Against all authojities, civil or military, belonging to enemy
coujitiies, however high their position may have been,
.without distinction of rank, including the Heads of States,
who ordered, or, with knowledge thereof and with power
to intervene, abstained from preventing or taking measures
to |n;event, putting an end to or repressing, violations of
the laws or cijstoms of wai', it being understood that no
sucii abstention shall constitute a defence for the actual
])er})etrators.
• In an earlier stage of the general report, indeed, until its Hnal
revision, such i)ersons Avere declared liable because they ' abstained
froin })reventiiig, ])utting an end to. or repressing, violations of the
laws or customs of war.' To this ciiteiion of liability the American
Ke])resentativcs were unalterably opposed. It is one thing to
punish a person who committed, or, ])ossessing the nutbority,
ordered others to commit an act constituting a crime ; it is quite
another thing to punish a person who failed to j^rcvent. to put an
vnd to, or to repress violations of the laws or customs of war. In
one case the individual af;ts or orders others to act, and in so doing
commits a ])ositiv<' offence. In the other he is to be punished for
the acts of otliers without proof being given that he knew of the
commission of the acts in question oi- that, knov\ing them, he
(rould hav(! prevented tluir commission. To establish lesponsibility
in such cases it is elementai'v that the individual sought to be
. punished should have knowledge of the commission ol" the acts of
a criminal nature and that he should have possesse^l the power as
well as the authoiity to ])revent. to put an end to. or I'epiess them.
Neither knowl(Mlge of commis.sion noi' ability to j)r('vcnt is alone
sufficient. The dnt}' or obligation to act is essential. They must
exist in conjunction, and a standard of liability whicli does not
include them all is to be lejected. ^The difficulty in the matter
of abstention was felt by the Commission, as to make abstention
VIOLATION OF THE LAWS AND CUSTOMS OF WAR 73
punishal)le might tend to exonerate the person actually eommitting
the act. Therefore the standard of lial)ility to which the American
llepresentativts objected was modified in the last sessions of the
CAmmission, and the mucJi less objectionable text, as stated above,
was adopted and substituted for the earlier and wholly inadmis-
sible one.
There remain, however, two reasons, w liich. if othejs were lacking,
would prevent the American Representatives from consenting to
the tribunal recommended by the Commission. The first of these
is the uncertainty of the law Jo be administered, in tliat lialjility
is made to depend not only upon violations of the laws a!nd customs
of war, but also upon violations 'of the laws of hinnanity.' The -
second of these reasons is that Heads of States are included within
the civil and military authoiities of the eiu^mv countries to be tried
and pifnished for violations of the laws and customs of war and
of the laws of humanity. The American Representatives believe
that the Commission has exceeded its mandate in extending liability
to violations of the laws of humanity, inasmuch as the facts to be
examined are solelv violations of the laws and customs of war.
They also believe that the Commission erred in seeking to subject
Heads of States to trial and punishment by a tril)unal to whose
jurisdiction they were not subject when the alleged oifences were
committed.
As pointed out by the American Representatives on more than -,
one occasion, ^war was and is by its very natuie iniiuman. Init acts
consistent witn the laws and customs of war, altliongh these acts /
are inhuman, are nevertheless not the object of ])unishment by
a com-t of justice. A judicial tribunal only deals with existing law
and only administers existing Law, leaving to another foriini infract
tions of the moral law and actions contrary to the laws and princi])les
of humanity. A fuither objection lies in the fact that the laws and
principles of humanity are not certain, varying with time, place,
and circumstance, and according, it may be, to the conscience of
the individual judge. There is no fixed and imiversal standard
of humanity.V The law of humanity, or the principle of humanity,
is much like equity, whereof John Sclden, as wise and cautious as
he was learned, aptly said :
' Equity is a roguish thing. For Law we have a measure, know
what to trust to ; Equity is according to the conscience of liim
that is Chancellor, and as that is larger or narrow(?r, so is Equity.
Tis all one as if they should make the standard for the measure
we call a ' foot ' a Chancellor's foot ; w hat an uncertain measure
<4 VlUi.ATlON Ol" TMK LAWS AND Cl'STOMS OK WAIi
would this 1k« ! Our ( 'liaiicollor has a Um^' foot, jinot^rr a short
foot, a third an indifforont fool. 'Tis the same thing in the Chan-
Ot'Uoi'"s COtlsciiMlC'C."
Wluh" rofognisinrr that oftVnres against the hiws and custonis of
war might In* Iriod heforc and tho perpetrators punished hy national
tribunals, the Comndssion was of the opinion that the grav«M-
eharges and tliose involving more than one eountrN shouM he tried
before an international body, to be ealled the High 'I'ribvnud. which
'shall l)e composed of three persons appointed by each of the
following (iovornmonts : ^Th- United States of America, the British
Empire. France. Italy, and .Japan, and one person appointed l)v
each of the following (Jovernments : Belgium, (ireece. Poland,
Portugal, Houmania, Serbia, and ('/echo-Slovakia ' ; the jnembers
of this tril)unal to be selected by each country ' from anTong the
members of their national courts or tribunals, civil or milittiry, and
now in existence or erected as indicated above,' The law to Ix'
ap[)lied is declared by the Commission to be ' the j)rinciples of the
law of nations as they result from the usages established among
civilised peo])k^s. from the laws of humanity and from the dictates
of public conscience.' The punishment to be inflicted is that which
may be im])osed ' for such an offence or offences by any court in
any country rej)resented on the tribunal or in the country of the
convicted ])erson.' The cases selected for trial are to be determined
a-nd the prosecutions directed by ' a prosecuting commission " com-
posed of a representative of the United States of America, the
British Em])ire, France, Italy, and Japan, to be assisted by a repre-
sentative of one of the other Governments, presumably a party to
the creation of the court or represented in it.
The American Representatives felt very strongly that too great
attention could not be devoted to the creation of an international
criminal court for the trial of individuals, for which a precedent is
lacking, and which appears to be \niknown in the practice of nations.
They were of the opinion that an act could not be a crime in the
legal sense of the word, unless it were made so by law, and that the
commission of an act declared to be a crime by law could rot be
punished unless the law prescribed the penalty to be inflicted.
They were perhaps more conscious than their colleagues of the
difficulties involved, inasmuch as this question was one that had
arisen in the American Union composed of States, and where it
had been held in the leading case of United States v. Hudson
(7 Cranch 32), decided by the Supreme Court of the United States
in 1812, that 'the legislative authority of the Union must first
VIOLATION OF THE LAWS AND CUSTOMS OF WAR 75
make an act a crime, affix a punishment to it, and declare the
court that shall have jurisdiction of the offence.' What is true of
the American .States must be true of this looser union which we
call the Society of Nations. The American Representatives know
bi no international statute or (;onvention making a violation of the
and customs of war — not to speak of the laws or principles
humanity — an international crime, affixing a punishment to it,
and declaring the court which has jurisdiction over the offence.
They felt, however, that the difficulty, however great, was not
insurmountable, inasmuch as the various States have declared
certain acts violating the laws and customs of war to be crimes,
affixing punishments to theii" commission, and providing military
courts or commissions within the respective States possessing
jurisdiction over such ofTence. Thev were advised that each of the
Allied and Associated States could create such a tribunal, if it had
not already done so. Here then was at tiand a series of existing
tribunal oi' tribunals that could lawfully be called into existence in
each of the Allied or Associated countries by the exercise of theii
sovereign jjowcrs, appiopriate for the trial and punishment within
their respective jurisdictions of persons of enemy nationality, wfio
during the war committed acts contrary to the laws and customs
of war, in so fai- as such acts affected the persons or property of
their sid)jects or citizens, whether such acts were committed within
portions of theii- territory occupied by the enemy or by the enemy
within its own jurisdiction.
The American Representatives therefore proposed that acts
affecting the persons or property of one of the Allied or Associated
Governments should be tried hy a military tribunal of that country ;
that acts involving moie than o-ne country, such as treatment by
Germany of prisoners contrary to the usages and customs of war.
could be tried by a tribunal cither made up of the competent
tri))unals of the countries affected or of a commission thereof pos-
sessing theii' authority. In this way existing national tribunals
or national commissions which could legally be called into being
would be utilised, and not only the law and the penalty would be
already declaied, but the procedure would be settled.
It seemed elementary to the American Representatives that a
country could not take part in the trial and punishment of a viola-
tion of the laws and customs of war committed by Germany and
her Allies before the particular country in question had become
a party to the war against Germany and her Allies : that conse-
quently the United States could not institute a military tribunal
70 VIOLATION OF THE LAWS AND CUSTOMS OK WAR
within its own juris(li(ti(»i\ to pass upon violations of the laws and
customs of wai', unless sucli violations were committed upon
American persons oi- American projjcrty, and that the United
States coidd not ])roperly take i)art in the trial and puni.siiment of
persons accused of violations of the laws and customs of war com-
mitted by the military or civil authoiities of Bulgai ia or Tuikey.
Under these c«)nditions and with these limitations the Ameiican
Kepresentatives Cv»nsidered that the United States might be a
party to a High Tribunal, which they would liave preferred to
call, because of its composition, the; Mixed or United Tiibunal
or Commission. They were averse to the creation of a new tiibunal,
of a new law, of a new penalty, which would be ex po'^f facto in
nature, and thus contrary to an express clause of the Constitution
of the United States and in conflict with the law and j^ractice of
civilised communities. They believed, however, that the United
States could co-operate to this extent by the utilisation of existing
tribunals, existing laws, and existing penalties. However, the
possibility of co-operating was frustrated by the insistence on the
part of the majority that criminal liability shoidd, in excess of
t>he mandate of the Conference, attach to the laws and principles
of hmnanity, in addition to the laws and customs of war, and that
the jurisdiction of the High Court shoidd be specifically extended
to ' the heads of States.'
fn regard to the latter point, it will be observed that the Ameiican
Rej)i'esentatives did not deny the responsibility of the heads of
States for acts which they may have committed in violation of
law, including, in so far as their country is concerned, the laws
and customs of war. but they held that heads of States are, as
Ij agents of the people, in whom the sovereignty of any State resides,
i responsible to the ])eo])le for the illegal acts which they may have
committed, and that they are not and that they should not be made
responsible to any othei' sovereignty.
The Anuuican Repiesentatives assumed, in debating this (pies-
tion, that from a legal point of view the people of every independent
country are j)ossessed of sovereignty, and that that sovereignty
is not held in that sense by rulers ; that the sovereignty which is
thus ])ossessed can summon before it any person, no matter how
high his estate, and call upon him to lender an account ^A his
official stewaj-dship : that the essence of sovcjcignty consi>t>- in
the fiict that it is not res])onsible to any foreign sovereignty ; that
in the exercise of sovereign powers which have been conferred
upon him 1>\ the ])co})l('. ;i monai'ch or head of State acts as theij'
VIOLATION OF THK LAWS AM> CI'STOMS <^F WAR 77
agent ; that he is only ivsponsil)le to them ; and that he is reHpoii-
sible to no other people or groiij) of people in the world.
The American Representatives admitted that fiom the moral
point of view the head of a State, be he termed emj)eror, king, or
ehief executive, is responsible to mankind, l)ut that from the legal
point of view they expressed themselves as unal)le to see how any
jnember of the Commission could claim that the head of a State
exercising sovereign rights is responsible to any but those who have
confided those rights to hini by consent exprttssed or implied.
The majority of the (Jommission, however, was not influenced
by the legal argument. They appeared to be fixed in their deter-
mination to try and punish by judicial process the ' ex-Kaiser '
of Germany. That there might be no doubt about their meaning,
they insisted that the jurisdiction of the High Tribunal whose
constitution they recommended should include the heads of States,
and they therefore inserted a provision to this effect in express
words in the clause dealing with the jurisdiction of the tribunal.
In view of their objections to the uncertain lau to be applied,
varying according to the conception of the members of the High
Court as to the laws and principles of humanity, and in view also
of their objections to the extent of the proposed jurisdiction of
tl)at tribunal, the American Representatives were constrained to
decline to be a party to its cieation. Necessarily they declined
the proffer on behalf of the Commission that the United States
should take part in the proceedings before that tribunal, or to
have the United States represented in the prosecuting commission
charged with the ' duty of selecting the cases for trial before the
tribunal and of diiecting and conducting prosecutions before it."
They therefore refrained from taking further part either in th(>
discussion of the constitution or of the procedure of the tribunal.
It was an ungracious task for the American Representatives to
oppose the views of their colleagues in the matter of the trial and
punishment of heads of States, when they believed as sincerely
and as profoundly as any other member that the particular heads
of States in question were morally guilty, even if they were not
punishable l)efore an international tri>)unal. such as the one pro-
posed, for the acts which they themselves had committed or with
whose commis.sion by otl^ers they could be justly taxed. It was
a matter of great regret to the American Representatives that they
found themselves subjected to criticism, owing to theii' objection
to declaring the la\\s and principles of himianity as a standard
whereby the acts of their enemies should be measured and punished
78 VIOLATION OF I II I. LAWS AND (TSTO.MS Ol' WAK
by a judicial tribunal. Tlicii abhoriciuofor the acts of the heads
of States of (Mieniy eountries is no less j^enuiue and deep than that of
their eoUea<rues, and their coneeption of the laws and })rineiplet4
of liumanity is. they l)elieve. not Jess (enlightened than that of their
eolleagues. They considered that they were dealing solely with
violations of the laws and customs of wai-, and that they were
engaged under the mandate of tlu' Conferciuc in creating a tribunal
in which violations of the iiws and customs of war should b*- tried
;»nd punished. They therefore confined themselves to law in its
legal sense, believing that in so doing they accorded with the
mandate of submission, and that to have permitted sentiment or
])opular indignation to affect their judgment would have been
violative of theii duty as mcnd)eis of the Commission on I^esponsi-
bilities.
They submit their views, rejected by the Commission, to the
Conference, in full confidence that it is only through the adminis-
tration of law . enacted and known b(>fore it is violated, that justice
may ultimately prevail internationally, as it actually does between
individuals in all civilised nations.
Memorandinti on the Pn'tKipIes n-hich should Detennine Inhuman and
Iwyroper Acts of War
To determine the principles which should be the standard of
justice in measuring the charge of inhuman or atrocious conduct
during the prosecution of a war. the following propositions should
be considered : —
^1. Slaying and maiming men in accoidance with generally
accepted lules of war are from theii- nature cruel and contrary to
the modern conception of humanity.
2. The methods of destruction of life and proi)erty in conformity
with the accepted rules of war are admitted by civilised nations to
be justifial)le and no charge of cruelty, inhumanity, or impropriety
lies against a party employing such methods.
'.i. The j)iinci])le underlying the accepted rules of war is the
necessity of exercising physical force to protect national safety
or to maintain national rights.
4. Reprehensible cruelty is a matter of degree which cannot be
justly determined by a fixed line of distinction, but one which
fluctuates in accordance with the facts in each case, but the mani-
fest departure from acceptetl rules and customs of war imposes
VIOLATION OF THE LAWS AND CUSTOMS OF WAR 79
upon the one so departing the burdtMi of justifying his conduct,
as he is prhaa j'acir. guilty of a criminal ad.
r>. The test of guilt in the ])ci])otration of an act. which would
he inhuman or otherwise reprehensible under normal conditions,
is the necessity of that act to the protection of national safety or
national lights measured chiefly by actual military advantage.
6. The assertion by the per])etiatoi' of an act that it is necessary
for military reasons does not exoneiate him from guilt if the. facts
and circumstances present reasonably strong groinids for estab-
lishing the needlessness of the act or for believing that the assertion
is not made in good faith.
7. While an act may be essentially repiehensible and the pei-
])etrator entirely unwarranted in assuming it to l>e necessary from
a military jjoint of view, he must not be condemned as wilfully
violating the laws and customs of war or the principles of humanity
unless it can be shown that the act was wanton and without reason-
able excuse.
H. A wanton act which causes needless suffering (and this includes
Kuch causes of suffering as destruction of })roperty, depiivation of
necessaries of life, enforced labour, &c.) is cruel and criminal. The
full measure of guilt attaches to a party who without adequate
reason perpetrates a needless act of cruelty. Such an act is a crime
against civilisation, which is without palliation.
1). It would appear, therefore, in determining the criminality of
an act, that there should be considered the wantonness or malice
of the perpetrator, the needlessness of the act from a military point
of view, the perpetration of a justifiable act in a needlessly harsh
or cruel manner, and the improper motive which inspired itA
ROBERT LANSING.
.lAMES BR(^WN SCOTT.
ANNEX 111
Ke.iervatiojis by the Japanese Delegation
The .Japanese Delegates on the Commission on Responsibilities
are convinced that many crimes have been committed by the enemy
in the course of the piesent war in violation of the fundamental
principles of international law, and recognise that the principal
responsibility rests upon individual enemies in high places. They
are consequently of opinion that, in order to re-establish for the
future the force of the principles thus infringed, it is important to
80 VIOLATION OF THK LAWS AND CUSTOMS OF WAR
discover practical moans for tlic punish mont of the persons respon-
sible for such violations.
A ([uestion may he raised whether it can he admitted as a principle
of the law of nations that a High Trihmial constituted by belligerents
ca!i. after a wa>- is over, try an individual belonging to the opposite
.side, who may be ])resumed to be guilty of a crime against the laws
and customs of war. It may furth.^r be asked whether international
law lecognises n ])enal law as applicable to those who are guilty.
I n any event, it seems to us important to consider the consequences
which would be created in the history of international law by the
|)rosecution for bleaches of the laws and customs of war of enemy
heads of States before a tribunal constituted by the opposite ])arty.
Our serujiies become still greater when it is a question of indicting
before a tribinial thus constituted highly-placed enemies on the
sole ground tluit tliey abstained from ])reventing, putting an end
to. or re])ressing a'ts in violation of the laws ami customs of war,
as is provided in clause (c) of section (b) of Chapter JV.
It is to be observed that to satisfy public opinion of the justice of
the decision of the a]^propriate tribunal, it would be better to rely
upon a strict inter])retation of the principles of penal lia))ility, and
consequently not to make cases of abstention the basis of such
responsibility.
In these ciicumstances the Japanese Delegates thought it pos-
sible to adheic. in the c;ourse of the discussions in the Commission,
to a text which would eliminate from clause (c) of section {h) of
Chapter IV both the words ' including the heads of States,' and
the provision covering eases of abstention, but they feel some
hesitation in supporting the amended form which admits a criminal
lial)ility wheie the accused, with knowledge and with power to
intervene, abstained from preventing or taking measures to prevent,
putting an end to. or repivssing acts in violation of the laws and
customs f)f war.
The Japanese Delegates desire to make clear that, subject to
the above reservations, they are disposed to consider with the
greatest care every suggestion calculated to bring about unanimity
in the Commission.
y\. ADATCl.
S. TACHF.
.1/;/// t. i'.tlU.
V-MOLATION OF THK LAWS AND (TSTOMS OK WAi; SI
AXNKX IV
Provisions for InHertion in Treaties iritli Kneiny (lovernrnents
Article I
The Eneuiy (jlovernment admits that even after the eonelusion
of peaee, every Allied and Associated State may exeiei.se. in respect
of any enemy or former enemy, the ri^ht which it would have had
during the war to try and punish any enemy who fell within its
power and who had been guilty of a violation of the principles of
the law of nations as these result from the usages established among
civilised peoples, from the laws of humanity and from tho dictates
of public conscience.
Article II
The Enemy Government recognises the right of the Allied and
Associated States, after the conclusion of peace, to constitute a
High Tribunal composed of members named by the Allied and
Associated States in such numbers and in such proportions as they
nlay think proper, and admits the jurisdiction of such tribimal to
try and punish enemies or former enemies guilty during the war of
violations of the principles of the law of nations as these result from
the usages established among civilised peoples, from the laws of
humanity and from the dictates of public conscience. It agrees
that no trial or sentence by any of its own courts shall bar trial and
sentence by the High Tribunal or by a national court belonging to
one of the Allied or Associated States.
Article HI
The /iJwe/ny. Government recognises the light of the High Tribunal
to impose upon any person found guilty the i)unishment or punish-
ments which may be imposed for such an offence or offences by
any court in any country represented on the High Tri})unal or in
the country of the convicted person. The Enemy GovernmeJit will
not object to such punishment or punishments being carried out.
Article IV
The Enemy Government agrees, on the demand of ony of the
Allied or Associated States, to take all possible measures for the
purpose of the delivery to the designated authority, for trial bv
the High Tribunal or, at its instance, by a national court of one of
such Allied or Associated States, of any person alleged to be guilty
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